EMPLOYMENT AGREEMENT
Exhibit 10.9
THIS EMPLOYMENT AGREEMENT (this “Agreement”), dated as of ___________ __, 2010 (the
“Effective Date”), is made by and between Bravo Brio Restaurant Group, Inc., an Ohio
corporation (the “Employer”) and Xxxxx X. X’Xxxxxx (“Executive”).
RECITALS
WHEREAS, Executive is currently employed by the Employer as its Chief Financial Officer and
desires to continue such employment on the terms and conditions set forth in this Agreement; and
WHEREAS, the Employer desires to continue Executive’s employment with the Employer as its
Chief Financial Officer on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement, intending to be legally bound, hereby agree as follows.
AGREEMENTS
1. Employment. Executive’s employment hereunder shall commence on the Effective Date and
shall continue until terminated in accordance with Section 1(c) hereof (the “Employment
Period”).
(a) Position and Duties.
(i) During the Employment Period, Executive shall serve as the Chief Financial Officer
of the Employer and shall have the normal duties, responsibilities and authority implied by
such position and such other duties and responsibilities as are assigned by the Chief
Executive Officer and/or his or her designee.
(ii) During the Employment Period, Executive shall report to the Chief Executive
Officer and/or his or her designee, and Executive shall devote Executive’s best efforts and
Executive’s full business time and attention to the business and affairs of the Employer and
its Affiliates. Executive shall not engage, directly or indirectly, in any other business,
investment or activity that (a) interferes with the performance of Executive’s duties under
this Agreement (which shall include the preceding sentence), (b) is contrary to the
interests of the Employer or any of its Affiliates or (c) requires any portion of
Executive’s business time; provided, however, that, to the extent that the following does
not impair Executive’s ability to perform Executive’s duties pursuant to this Agreement
(which shall include the preceding sentence), Executive, with the Board’s prior written
approval (which approval may be withheld in the sole discretion of the
Board), may serve on the board or committee of any charitable, religious, or
educational institution.
(b) Salary, Bonus, Benefits and Expenses.
(i) Salary. During the Employment Period, the Employer will pay Executive a
base salary of $206,000 per annum (the “Base Salary”). The Board may review the
Base Salary of Executive and may adjust the Base Salary by such amount as the Board, in its
sole discretion, shall deem appropriate. The term “Base Salary” as used in this
Agreement shall refer to the Base Salary as it may be so adjusted.
(ii) Annual Bonus. During the Employment Period, Executive shall be eligible to
earn an annual bonus (the “Annual Bonus”) based upon the achievement of corporate
and/or individual performance goals established by the Board in its sole and absolute
discretion. Any Annual Bonus earned by Executive shall be paid to Executive no later than
March 15th of the year following the year to which such Annual Bonus relates;
provided, that no Annual Bonus will be paid to Executive unless Executive has been
continuously employed by the Employer through the end of the fiscal year for which the
Annual Bonus was earned.
(iii) Benefits. During the Employment Period, Executive shall be eligible to
participate in and be covered on the same basis as other senior management of the Employer
under all employee benefit plans and programs of the Employer (subject to the terms and
conditions of the applicable plan or program) and be entitled to receive four (4) weeks of
paid vacation per calendar year (pro-rated for any partial calendar year worked).
(iv) Expenses. Employer shall pay or reimburse Executive for reasonable and
necessary expenses directly incurred by Executive in the course of Executive’s employment by
Employer in accordance with Employer’s standard policies and practices as in effect from
time to time. All reimbursements under this Section 1(b)(iv) shall be made as soon as
practicable following submission of a reimbursement request, but no later than the end of
the year following the year during which the underlying expense was incurred.
(c) Separation. The Employment Period will terminate immediately upon Executive’s
death. In addition, the Employer may, at any time, terminate the Employment Period with or without
Cause, or due to Executive’s Disability, in each case, upon written notice to Executive of such
termination, and Executive may terminate the Employment Period without Good Reason upon thirty (30)
days advance written notice to the Employer. Executive may terminate the Employment Period for
Good Reason; provided, that, Good Reason shall not be deemed to exist unless Executive notifies the
Employer within fifteen (15) days after the occurrence of the event which Executive believes
constitutes the basis for Good Reason, specifying the particular act or failure to act which
Executive believes constitutes the basis for Good Reason, the Employer does not cure such act or
failure to act within thirty (30) days after receipt of such notice, and Executive actually has a
Separation within thirty (30) days after the expiration of the Employer’s thirty (30) day cure
period. Effective immediately upon any
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Separation, Executive shall resign, and shall be deemed to have resigned, from all other
officer, employee and director positions held by Executive with the Employer or any of its
Affiliates.
(d) Severance.
(i) Termination Without Cause or For Good Reason. If Executive’s employment
with the Employer and its Affiliates is terminated during the Employment Period by the
Employer without Cause or by Executive for Good Reason, the Employer shall provide Executive
with the following payments and benefits:
| (1) | contingent upon the effectiveness of a general release of claims in form and substance satisfactory to the Employer which is executed within forty-five (45) days of the date of such Separation, Base Salary continuation during the period commencing on the sixtieth (60th) date following such Separation and ending on the date that is two (2) years thereafter; | ||
| (2) | any accrued but unpaid Base Salary; and | ||
| (3) | any accrued and vested benefits under any employee benefit plan of the Employer or its Affiliates in which Executive was participating immediately prior to Separation, such benefits to be provided in accordance with the terms of the applicable employee benefit plan; provided that in no event shall Executive be entitled to receive any payment for accrued but unused vacation time. |
Notwithstanding the foregoing, if Executive breaches any of the provisions of Section 2,
Section 3 or Section 4 hereof, any and all remaining Base Salary continuation payments
payable pursuant to Section 1(d)(i)(1) shall be immediately forfeited.
Notwithstanding anything herein to the contrary, if Executive is a “specified employee”
within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”), and the regulations issued thereunder, and a payment or benefit provided
for in this Section 1(d) would be subject to additional tax under Code Section 409A if the
payment or benefit is paid within six months of Executive’s Separation, then such payment or
benefit required under this Agreement shall not be paid (or commence) until the first day
which is six (6) months after Executive’s Separation. In such case, any payments that would
otherwise have been made during such period shall be made to Executive in a lump sum
(without interest) as soon as administratively feasible subsequent to the date that is six
(6) months after Executive’s Separation.
(ii) Other Terminations. If Executive’s employment with the Employer and its
Affiliates is terminated during the Employment Period due to Executive’s death or
Disability, by the Employer for Cause or by Executive without Good Reason, the sole
obligation of the Employer and its Affiliates to Executive shall be to pay to Executive (or
his estate or beneficiaries, as the case may be) (x) any accrued but unpaid Base Salary and
(y) any accrued and vested benefits under any employee benefit plan of the Employer
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or its Affiliates in which Executive was participating immediately prior to Separation,
such benefits to be provided in accordance with the terms of the applicable employee benefit
plan.
2. Confidential Information.
(a) Obligation to Maintain Confidentiality. Executive shall not, during or after the
Employment Period, without the prior express written consent of the Board, directly or indirectly
use or divulge, disclose or make available or accessible any Confidential Information to any Person
(other than when required to do so in good faith to perform Executive’s duties and responsibilities
under this Agreement or when required to do so by a lawful order of a court of competent
jurisdiction, any governmental authority or agency, or any recognized subpoena power). In the
event that Executive becomes legally compelled (by oral questions, interrogatories, request for
information or documents, subpoena, criminal or civil investigative demand or similar process) to
disclose any of the Confidential Information, then prior to such disclosure, Executive will provide
the Board with prompt written notice so that the Board may seek (with Executive’s cooperation) a
protective order or other appropriate remedy and/or waive compliance with the provisions of this
Agreement. In the event that such protective order or other remedy is not obtained, then Executive
will furnish only that portion of the Confidential Information which he is advised by counsel is
legally required, and will cooperate with the Board in the Board’s efforts to obtain reliable
assurance that confidential treatment will be accorded to the Confidential Information. Executive
shall also proffer to the Employer, no later than the date of Separation for any reason, and
without retaining any copies, notes or excerpts thereof, all memoranda, computer disks or other
media, computer programs, diaries, notes, records, data, customer or client lists, marketing plans
and strategies, and any other documents consisting of or containing Confidential Information that
are in Executive’s actual or constructive possession or which are subject to Executive’s control at
such time.
(b) Ownership of Property. Executive acknowledges that all discoveries, concepts,
ideas, inventions, innovations, improvements, developments, methods, processes, programs, designs,
analyses, drawings, reports, patent applications, copyrightable work and mask work (whether or not
including any Confidential Information) and all registrations or applications related thereto, all
other proprietary information and all similar or related information (whether or not patentable)
that relate to the Employer’s or any Affiliate of the Employer’s actual or anticipated business,
research and development, or existing or future products or services and that are conceived,
developed, contributed to, made, or reduced to practice by Executive (either solely or jointly with
others) while employed by the Employer (including any of the foregoing that constitutes any
proprietary information or records) (“Work Product”) belong to the Employer or any
Affiliate of the Employer designated by the Employer, and Executive hereby assigns, and agrees to
assign, all of the above Work Product to the Employer or such Affiliate of the Employer. Any
copyrightable work prepared in whole or in part by Executive in the course of Executive’s work for
any of the foregoing entities shall be deemed a “work made for hire” under the copyright laws, and
the Employer or such Affiliate of the Employer shall own all rights therein. To the extent that
any such copyrightable work is not a “work made for hire,” Executive hereby assigns and agrees to
assign to the Employer or such Affiliate of the Employer all right, title, and interest, including
without limitation, copyright in and to such copyrightable work. Executive shall promptly disclose
such Work Product and copyrightable work to the Board and
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perform all actions reasonably requested by the Board (whether during or after the Employment
Period) to establish and confirm the ownership of the Employer or such Affiliate of the Employer
(including, without limitation, assignments, consents, powers of attorney and other instruments).
(c) Third Party Information. Executive understands that the Employer and its
Affiliates will receive from third parties confidential or proprietary information (“Third
Party Information”) subject to a duty on the Employer’s and its Affiliates’ part to maintain
the confidentiality of such information and to use it only for certain limited purposes. During
the Employment Period and thereafter, and without in any way limiting the provisions of Section
2(a) above, Executive will hold Third Party Information in the strictest confidence and will not
disclose to anyone (other than personnel and consultants of the Employer or its Affiliates who need
to know such information in connection with their work for the Employer or any of its Affiliates)
or use, except in connection with his work for the Employer or any of its Affiliates, Third Party
Information unless expressly authorized by the Board in writing.
3. Non-Disparagement. Except as required by applicable law, rule or regulation or any
recognized subpoena power, Executive agrees that, during and after the Employment Period, he shall
not at any time make any statement or representation, written or oral, which Executive knows or
should know will, or which he knows or should know is reasonably likely to, impair or adversely
affect in any way the reputation, goodwill, business, customer or supplier relationships, or public
relations of the Employer and/or any of its Affiliates, and/or any of their respective partners,
directors, employees or officers. In the event that Executive becomes legally compelled (by oral
questions, interrogatories, request for information or documents, subpoena, criminal or civil
investigative demand or similar process) to make any such statements or representations, then prior
thereto, Executive will provide the Board with prompt written notice so that the Board may seek
(with Executive’s cooperation) a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event that such protective order or other
remedy is not obtained, then Executive will only make such statements or representations which he
is advised by counsel are legally required, and will cooperate with the Board in the Board’s
efforts to obtain reliable assurance that confidential treatment will be accorded to any such
statements or representations.
4. Non-Competition and Non-Solicitation. Executive acknowledges that in the course of
Executive’s employment with the Employer, Executive has or will become familiar with the Employer’s
and its Affiliates’ trade secrets and with other Confidential Information concerning the Employer
and/or its Affiliates and that Executive’s services have been and will be of special, unique and
extraordinary value to the Employer and its Affiliates. In consideration of the foregoing and for
other good and valuable consideration and as a material inducement to the Employer to enter into
this Agreement, Executive agrees that:
(a) Non-Competition. Executive shall not, while Executive is employed by the Employer
and for two (2) years after the date of any Separation (the “Restricted Period”), directly
or indirectly, engage, without the prior express written consent of the Board, in any business or
activity, whether as an employee, consultant, partner, principal, agent, representative, director,
stockholder or in any other individual, corporate or representative capacity, or render any
services or provide any advice to any business, activity, service or Person, if such business,
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activity, service or Person competes with the Business or could reasonably be assumed to
subsequently provide products or services which would compete with the Business. In addition,
Executive shall not, during the Restricted Period, assist, help or otherwise support, without the
prior express written consent of the Employer, any Person, business or other activity, whether as
an employee, consultant, partner, principal, agent, representative, director, stockholder or in any
other individual, corporate or representative capacity, to create, commence or otherwise initiate,
or to develop, enhance or otherwise further, any business or activity if such business or activity
competes (or is reasonably likely to compete (as determined by the Board in its sole discretion))
with the Business. Notwithstanding the foregoing, Executive shall not be prohibited during the
Restricted Period from being a passive investor where Executive owns not more than five percent
(5%) of the outstanding capital stock of any publicly-held company.
(b) Non-Solicitation. Executive shall not during the Restricted Period, (a) take any
action to solicit or divert any business or clients or customers away from the Employer or any of
its Affiliates, (b) induce customers, clients, business partners, suppliers, agents, lessors,
licensors, licensees, or other Persons under contract or otherwise associated or doing business
with the Employer or any of its Affiliates to terminate, reduce or alter any such association or
business with or from the Employer or such Affiliate or (c) contact, solicit, approach or hire any
person employed by the Employer or any of its Affiliates or who was an employee of the Employer or
any of its Affiliates during the one (1) year period prior to such contact, solicitation, approach
or hiring.
(c) Injunctive Relief. The provisions of Section 2, Section 3 and Section 4 hereof
are material inducements to the Employer entering into and performing this Agreement. Executive
acknowledges and agrees that the Employer will have no adequate remedy at law, and would be
irreparably harmed, if Executive breaches or threatens to breach any of the provisions of Section
2, Section 3 or Section 4 of this Agreement. Executive agrees that the Employer shall be entitled
to equitable and/or injunctive relief to prevent any breach or threatened breach of Section 2,
Section 3 and/or Section 4 of this Agreement, and to specific performance of each of the terms of
such Sections in addition to any other legal or equitable remedies that the Employer may have.
Executive further agrees that he shall not, in any equity proceeding relating to the enforcement of
the terms of Section 2, Section 3 and/or Section 4 of this Agreement, raise the defense that the
Employer has an adequate remedy at law.
(d) Special Severability. The terms and provisions of Section 2, Section 3 and
Section 4 of this Agreement are intended to be separate and divisible provisions and if, for any
reason, any one or more of them is held to be invalid or unenforceable, neither the validity nor
the enforceability of any other provision of this Agreement shall thereby be affected. It is the
intention of the parties to this Agreement that the potential restrictions on Executive’s future
employment imposed by such Sections be reasonable in both duration and geographic scope and in all
other respects. If for any reason any court of competent jurisdiction shall find any provisions of
Section 2, Section 3 and/or Section 4 of this Agreement unreasonable in duration or geographic
scope or otherwise, Executive and the Employer agree that the restrictions and prohibitions
contained herein shall be effective to the fullest extent allowed under applicable law in such
jurisdiction.
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(e) Extension of Restricted Period. If Executive breaches any of the covenants
contained in Section 4(a) or Section 4(b), then the Restricted Period shall be extended for a
period of time equal to the period of time during which Executive is in breach of such restrictive
covenant.
(f) Additional Acknowledgments. Executive acknowledges that the provisions of this
Section 4 are in consideration of employment with the Employer and additional good and valuable
consideration. In addition, Executive agrees and acknowledges that the restrictions contained in
Section 2, Section 3 and Section 4 hereof do not preclude Executive from earning a living, nor do
they unreasonably impose limitations on Executive’s ability to earn a living.
5. Definitions.
“Affiliate” means, with respect to any Person, any Person that controls, is controlled
by or is under common control with such Person or an Affiliate of such Person.
“Board” means the Employer’s board of directors.
“Business” means operating casual Italian restaurants within North America.
“Cause” means (i) Executive’s fraud or material dishonesty in connection with the
performance of his duties for the Employer, (ii) the failure by Executive (other than by reason of
Disability) to substantially perform the duties of his position, as directed by the Chief Executive
Officer and/or his or her designee, which failure is not cured, if reasonably susceptible of cure,
within 10 business days after delivery of written notice thereof to Executive, or (iii) Executive’s
conviction of a felony, or plea of guilty or nolo contendere to, a charge of commission of a
felony, or (iv) commission of any act, or violation of any law, that in the good faith judgment of
the Board could reasonably be expected to bring material disrepute to the Employer or adversely
affect Executive’s ability to perform his duties for the Employer.
“Confidential Information” means all information respecting the business and
activities of the Employer or any Affiliate of the Employer, including, without limitation, the
clients, customers, suppliers, employees, consultants, computer or other files, projects, products,
computer disks or other media, computer hardware or computer software programs, marketing plans,
financial information, methodologies, know-how, processes, practices, approaches, projections,
forecasts, formats, systems, trade secrets, data gathering methods and/or strategies of the
Employer or any Affiliate of the Employer. Notwithstanding the immediately preceding sentence,
Confidential Information shall not include any information that is, or becomes, generally available
to the public (unless such availability occurs as a result of Executive’s breach of any portion of
this Agreement).
“Disability” means the disability of Executive caused by any physical or mental
injury, illness or incapacity as a result of which Executive is unable to effectively perform the
essential functions of Executive’s duties, with or without reasonable accommodation, for a period
of 180 consecutive calendar days, as determined by the Board in good faith.
“Good Reason” means, without the consent of Executive, (i) a material diminution in
Executive’s Base Salary, (ii) a material diminution in Executive’s authority, duties, or
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responsibilities, (iii) a material change in the geographic location at which Executive must
perform the services, or (iv) any other action or inaction that constitutes a material breach by
the Employer of this Agreement.
“Person” means an individual, a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization, an investment fund, any other business entity and a governmental entity or any
department, agency or political subdivision thereof.
“Separation” means the cessation of employment of Executive with the Employer or any
successor thereto for any reason.
6. Notices. Any notice provided for in this Agreement must be in writing and must be
either personally delivered, mailed by first class mail (postage prepaid and return receipt
requested) or sent by reputable overnight courier service (charges prepaid) to the recipient at the
address below indicated and shall be effective upon receipt:
| To the Employer: | Bravo Brio Restaurant Gropu, Inc. | |||
| 000 Xxxxxxx Xxxxxxxxx, Xxxxx 000 | ||||
| Xxxxxxxx, XX 00000 | ||||
| Attention: Chief Executive Officer | ||||
| With a copy to Employer’s | ||||
| counsel at: | Xxxxxx X. Xxxxxx, Esq. Dechert LLP | |||
| Xxxx Center | ||||
| 0000 Xxxx Xxxxxx | ||||
| Xxxxxxxxxxxx, XX 00000 | ||||
| To Executive: | at the address listed in the Employer’s personnel records |
7. General Provisions.
(a) Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement will (except as
otherwise expressly provided herein) be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision had never been contained herein.
(b) Entire Agreement. This Agreement contains the entire agreement between the
parties concerning the subject matter hereof and supersedes all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or oral, between the parties with
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respect thereto, including without limitation any term sheets addressing potential provisions
of this Agreement.
(c) No Strict Construction; Headings. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule
of strict construction shall be applied against any party. The headings of the sections contained
in this Agreement are for convenience only and shall not be deemed to control or affect the meaning
or construction of any provision of this Agreement.
(d) Counterparts. This Agreement may be executed and delivered in separate
counterparts (including by means of facsimile), each of which is deemed to be an original and all
of which taken together constitute one and the same agreement. This Agreement shall become
effective only when counterparts have been executed and delivered by all parties whose names are
set forth on the signature page(s) hereof.
(e) Successors and Assigns. This Agreement may be assigned by the Employer to one of
its Affiliates or to any successor to the Employer, but shall not be assignable by Executive.
Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be
enforceable by Executive, the Employer and their respective successors and assigns.
(f) Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the state of New York, applied without reference to principles of conflict of
laws.
(g) Dispute Resolution. Any dispute, controversy or claim arising out of or relating
to this Agreement, the breach, termination, enforcement, interpretation, or validity thereof
(including the determination of the scope or applicability of this Section 7(g)), or its subject
matter shall be settled by binding arbitration before a single arbitrator in Columbus, OH, pursuant
to the Employment Dispute Resolution Rules of the American Arbitration Association. The decision
of the arbitrator shall be final and unappealable, and judgment on the arbitration award may be
entered in any court having jurisdiction thereof. Except as may otherwise be determined by the
arbitrator or required by law, all costs of arbitration shall be equally split by the parties
(except that the parties will share equally in any filing fees associated with the arbitration).
Notwithstanding anything to the contrary, the Employer may at any time seek injunctions or other
forms of equitable relief from any court of competent jurisdiction.
(h) Cooperation. During the Employment Period and thereafter, Executive shall
cooperate with the Employer and its Affiliates in any disputes with third parties, internal
investigations or administrative, regulatory or judicial proceedings as reasonably requested by the
Employer (including, without limitation, Executive being available to the Employer upon reasonable
notice and at a reasonable location for interviews and factual investigations, appearing at the
Employer’s request to give testimony without requiring service of a subpoena or other legal
process, volunteering to the Employer all pertinent information and turning over to the Employer
all relevant documents which are or may come into Executive’s possession, all at times and on
schedules that are reasonably consistent with Executive’s other permitted activities and
commitments). In the event the Employer requires Executive’s cooperation in accordance
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with this Section after Executive’s Separation, the Employer shall reimburse Executive for
reasonable travel expenses (including lodging and meals, upon submission of receipts).
(i) Representations. Executive represents and warrants to the Employer that (i) his
execution of this Agreement and the performance of his obligations hereunder will not breach or be
in conflict with any other agreement to which Executive is a party or by which he is otherwise
bound, and (ii) he is not currently subject to any covenants against competition or similar
covenants or any court order that could preclude or otherwise affect the performance of his duties
and obligations hereunder.
(j) Amendment and Waiver. The provisions of this Agreement may be amended and waived
only with the prior written consent of the Employer and Executive.
(k) Withholding. All payments and benefits due to Executive under this Agreement or
otherwise shall be subject to withholding on account of federal, state and local taxes, as
determined by the Employer. Executive will be solely responsible for such federal, state and
local taxes resulting from any taxable income paid to him hereunder or otherwise by the Employer
and/or any Affiliate, including without limitation any taxes imposed under Section 409A of the Code
or Section 4999 of the Code.
(l) Survival. This Agreement (except for the provisions of Sections 1(a) and (b))
shall survive a Separation and shall remain in full force and effect after such Separation.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written
above.
| BRAVO BRIO RESTAURANT GROUP, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| EXECUTIVE: Xxxxx X. X’Xxxxxx |
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