EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 11th day of
May, 2000, by and between RED XXXXX INTERNATIONAL, INC., a Nevada corporation
(the "Company"), and XXXXXXX X. XXXXXX (the "Executive").
The Company has, simultaneously with the execution and delivery of this
Agreement entered into (i) an Agreement and Plan of Merger dated as of February
18, 2000 (the "Merger Agreement") pursuant to which it will acquire all of the
outstanding common stock of the Xxxxxx Group Company, a Delaware corporation
(the "Acquisition") and (ii) a Stock Subscription Agreement dated as of February
18, 2000 (the "Subscription Agreement") pursuant to which it will issue to RR
Investors, LLC and RR Investors II, LLC an aggregate of 12,500,000 for an
aggregate consideration of $25,000,000 (the "Stock Issuance," and together with
the Acquisition, the "Transaction");
The Board of Directors of the Company have determined that it will be in
the best interests of the Company and its shareholders to retain the employment
of the Executive as the Chairman, Chief Executive Officer and President of the
Company after the Transaction and the Executive desires to serve in that
capacity; and
The Company and the Executive desire to set forth in a written agreement
the terms and conditions under which the Executive will continue to be employed
by the Company after the Closing of the Transaction.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period. The Company shall employ the Executive, and the
Executive agrees to, and shall, serve the Company, on the terms and conditions
set forth in this Agreement, for the period commencing immediately after the
Closing of the Transaction and ending on the fifth anniversary of such date (the
"Employment Period"). The Employment Period will be automatically extended at
the end of the initial term and on each one year anniversary thereafter for an
additional one year unless, not less than 90 days before the end of such term,
either the Company or the Executive gives written notice to the other that the
Employment Period will not be extended, in which event the Employment Period
shall end, and the Executive's employment hereunder shall terminate, upon the
expiration of the then-current term.
2. Position and Duties.
(a) During the Employment Period, the Executive shall be the Chairman,
Chief Executive Officer and President of the Company with such duties and
responsibilities as are assigned to him by the Board of Directors of the
Company (the "Board") consistent with his position as Chairman, Chief
Executive Officer and President of the Company.
(b) During the Employment Period, and excluding any reasonable periods
of vacation and sick leave to which the Executive is entitled, the
Executive shall devote all of his skill, knowledge and working time to the
business and affairs of the Company and shall perform his services
primarily at the Company's headquarters, wherever the Board may from time
to time designate them to be, but in any case, within a 50-mile radius of
Denver,
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Colorado, and to the extent necessary to discharge the responsibilities
assigned to the Executive under this Agreement, use the Executive's best
efforts to carry out such responsibilities faithfully and efficiently.
(c) In his position as Chairman, Chief Executive Officer and
President, the Executive shall, subject to the "Authorization Limits" set
forth in Exhibit A hereto, have full authority and responsibility to manage
the operation of the Company's restaurants and franchise system, including
the hiring and discharge of employees of the Company, closing, selling,
developing and opening restaurants as contemplated by the annual business
plan approved by the Board of Directors (the "Annual Plan"), establishing
and administering the Company's marketing plan, making improvements in and
refurbishing the Company's restaurants consistent with the capital
expenditure budget in the Annual Plan, administering and managing the
day-to-day operation of the restaurants, granting new franchises and
administering and managing the franchise operations consistent with the
Annual Plan; provided that without the approval of the Board of
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Directors, the Executive shall not take any major action not contemplated
by or consistent with the Annual Plan.
3. Compensation.
(a) Base Salary. During the Employment Period, the Executive shall
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receive from the Company an annual base salary ("Annual Base Salary") of
$330,750, payable in accordance with the Company's normal payroll policy.
The Executive's Annual Base Salary shall be subject to review annually by
the Board.
(b) Annual Incentive Compensation. In addition to the Annual Base
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Salary, the Executive shall be entitled to participate in the Company's
Annual Incentive Compensation Plan in accordance with terms thereof set
forth in Exhibit B hereto.
(c) Other Benefits. During the Employment Period: (i) the Executive
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shall be entitled to participate in all incentive, savings and retirement
plans, practices, policies and programs of the Company to the same extent
as other senior executive employees of the Company and (ii) the Executive
and/or the Executive's family, as the case may be, shall be eligible for
participation in, and shall receive all benefits under, all welfare benefit
plans, practices, policies and programs provided by the Company (including,
to the extent provided, without limitation, medical, prescription, dental,
disability, salary continuance, employee life insurance, group life
insurance, accidental death and travel accident insurance plans and
programs) to the same extent as other senior executive employees of the
Company.
(d) Expenses. During the Employment Period, the Executive shall be
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entitled to receive prompt reimbursement for all reasonable travel
and other expenses incurred by the Executive in carrying out the
Executive's duties under this Agreement, provided that the Executive
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complies with the policies, practices and procedures of the Company for
submission of expense reports, receipts, or similar documentation of the
incurrence and purpose of such expenses. The Executive will be authorized
to fly on charter or private aircraft for appropriate business use;
personal use of charter or private aircraft will be for the Executive's
personal account. Where a flight combines business and personal use, the
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cost of such flight will be appropriately allocated between the two uses;
provided that the stopover by the Executive in cities of residence which
are substantially in the line of flight of the business purpose, will not
be deemed personal use. Any disagreements on the allocation of flight costs
will be reviewed and discussed with the Executive Committee.
(e) Options.
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(i) Time Vested Options. Upon the Closing (as defined in the
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Merger Agreement) the Executive will be granted options to purchase
400,000 shares of the Company's common stock pursuant to the terms and
conditions set forth in the option grant letter attached hereto as
Exhibit C.
(ii) Performance Options. Upon the Closing (as defined in the
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Merger Agreement) the Executive will be granted options to purchase
1,100,000 shares of the Company's common stock pursuant to the terms
and conditions set forth in the option grant letter attached hereto as
Exhibit D.
(f) Loans. The Company will lend to the Executive from time to time
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during each of the first two years of the Employment Period up to $300,000
per year. The loans will be due on the fifth anniversary of the date
hereof; provided the loans will be due on the Date of Termination of the
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Executive's employment by the Company for Cause or by the Executive other
than for Substantial Breach; provided further that in the event the
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Executive's employment has not been terminated by the Company for Cause or
by the Executive other than for Substantial Breach, the Company will extend
the maturity date of the loans until the earlier of (i) sale of the Company
and (ii) twelve months after the effective date of the initial public
offering by the Company. Each loan will bear interest, compounded annually,
at the rate per annum which is equal to the Applicable Federal Rate in
effect on the date the loan is made; provided that in the event the Company
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achieves cumulative EBITDA for the 2000 and 2001 fiscal years of at least
$46,983,000, all accrued interest will be forgiven and no additional
interest will accrue. The loans will be secured by a pledge to the Company
of 300,000 Common Shares of the Company and will be subject to mandatory
prepayment out of the after tax proceeds of any sale (other than a
Permitted Transfer to a Related Transferee as defined in the Shareholders
Agreement to which the Executive will become a party) by the Executive of
any Common Shares of the Company.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
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automatically upon the Executive's death during the Employment Period. The
Company shall be entitled to terminate the Executive's employment because
of the Executive's Disability during the Employment Period. A termination
of the Executive's employment by the Company for Disability shall be
communicated to the Executive by written notice, and shall be effective on
the 30th day after receipt of such notice by the Executive (the "Disability
Effective Date"), unless the Executive returns to full-time performance of
his duties in accordance with the provisions of Section 2 before the
Disability Effective Date.
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(b) Not Death or Disability. The Company may terminate the Executive's
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employment at any time during the Employment Period with or without cause.
The Executive may terminate his employment at any time during the
Employment Period.
(c) Date of Termination. The "Date of Termination" means the date of
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the Executive's death, the Disability Effective Date, or the date on which
the termination of the Executive's employment by the Company, or by the
Executive, is effective, as the case may be.
5. Obligations of the Company Upon Termination.
(a) By the Company, Other Than for Cause and other than by reason of
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Death or Disability; Termination by the Executive for Substantial Breach.
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If, during the Employment Period, (i) the Company terminates the
Executive's employment other than for Cause or other than by reason of the
Executive's death or Disability or (ii) the Executive terminates his
employment for Substantial Breach, (A) the Company shall pay on a prorata
basis at the time of normal payroll payments an amount equal to the
Executive's Annual Base Salary as in effect immediately before the Date of
Termination and the bonus that would have been paid pursuant to Section
3(b) hereof on the next bonus payment date immediately following the Date
of Termination had the Executive continued to be employed on such date and
(B) the Executive shall be eligible to continue to receive health benefits
for himself and his wife and unemancipated children (provided that during
any period when the Executive is eligible to receive such benefits under
another employer-provided plan, the benefits provided by the Company under
this clause (B) may be made secondary to those provided under such other
plan), but not retirement or pension benefits, subject to standard employee
contributions, in each case for one year after the Date of Termination. As
a condition the Company's obligations (if any) to make severance payments
pursuant to this Section 5(a), the Executive will execute and deliver a
general release in form and substance satisfactory to the Company.
(b) Death or Disability. If the Executive's employment is terminated
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by reason of the Executive's death or Disability during the Employment
Period, the Company shall (i) pay the Accrued Obligations, which shall
equal the sum of (A) any portion of the Executive's Annual Base Salary
through the Date of Termination that has not yet been paid; (B) any
compensation previously deferred by the Executive (together with any
accrued interest or earnings thereon) that has not yet been paid; and (C)
any accrued but unpaid vacation pay; to the Executive or the Executive's
estate or legal representative, as applicable, in a lump sum in cash within
30 days after the Date of Termination and (ii) continue the benefits
described in clause (ii) of Section 3(c) on the terms and conditions
therein contained until the first anniversary of Executive's Date of
Termination, and the Company shall have no further obligations under this
Agreement. In addition, in the event the Executive's employment is
terminated by reason of his death, the Executive's estate will have the
right, by giving notice to the Company with 120 days after the date of the
Executive's death, to require the Company to purchase from the Executive's
estate such number of Common Shares of the Company having a fair market
value not to exceed $5,000,000, which fair market value shall be determined
by a nationally recognized
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investment banking or appraisal firm selected by the Company and reasonably
satisfactory to the Executive's estate.
(c) By the Company for Cause; By the Executive other than for
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Substantial Breach. If the Company terminates the Executive's employment
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for Cause, the Executive terminates his employment with the Company other
than by reason of a Substantial Breach by the Company or either party gives
notice to the other of non-extension of the term of the Employment Period
pursuant to Section 1, the Company shall pay to the Executive in the same
manner as if the Executive had not been terminated any portion of
Executive's Annual Base Salary through the Date of Termination that has not
yet been paid, and the Company shall have no further obligations to the
Executive under this Agreement.
(d) Sole Remedy. The parties agree that the foregoing shall constitute
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the Executive's sole and exclusive rights and remedies by reason of
termination pursuant to Section 5, and that with respect to Section 5(c),
such amounts shall constitute an agreement between the parties of
liquidated damages for the Executive by reason of any such termination. It
is further understood that neither party hereto shall be entitled to
punitive, consequential or special damages with respect to any claim
hereunder, and each party waives all such rights and remedies if any.
6. Confidential Information. The Executive shall not disclose to any person
or entity or use, any information not in the public domain, in any form,
acquired by the Executive while he was employed or associated with the Company
or, if acquired following the termination of such association, such information
which, to the Executive's knowledge, has been acquired, directly or indirectly,
from any person or entity owing a duty of confidentiality to the Company,
relating to the Company or its business. The Executive agrees and acknowledges
that all of such information, in any form, and copies and extracts thereof are
and shall remain the sole and exclusive property of the Company, and the
Executive shall on request return to the Company the originals and all copies of
any such information provided to or acquired by the Executive in connection with
his association with the Company, and shall return to the Company all files,
correspondence and/or other communications received, maintained and/or
originated by the Executive during the course of such association.
7. Covenant Not to Compete. The Executive agrees that, for the period
commencing on the date hereof and ending on the second anniversary of the Date
of Termination of Employment, including due to expiration of the Employment
Period (the "Restrictive Period"), the Executive shall not, in the Territory
(hereinafter defined), directly or indirectly, either for himself or for, with
or through any other Person, own, manage, operate, control, be employed by,
participate in, loan money to or be connected in any manner with, or permit his
name to be used by, any business which is engaged in the casual dining
restaurant business (a "Competitive Activity"). For purposes of this Agreement,
the term "participate" includes any direct or indirect interest, whether as an
officer, director, employee, partner, sole proprietor, trustee, beneficiary,
agent, representative, independent contractor, consultant, advisor, provider of
personal services, creditor, owner (other than by ownership of less than five
percent of the stock of a publicly-held corporation whose stock is traded on a
national securities exchange or in the NASD National Market (a "Public
Company"); provided, that this Section 7 shall not prohibit the Executive from
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(i) owning a passive equity interest in an entity (including Xxxx Xxxxx LLC, a
Washington limited liability company,
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subject to the non-competition covenants in the Area Development Agreements and
Franchise Agreements with the Company) so long as such entity operates only
restaurants operated as "Red Xxxxx" restaurants pursuant to franchise agreements
with the Company and (ii) so long as such activities do not adversely affect
Executive's ability to devote his entire working effort as the Chairman, Chief
Executive Officer and President of the Company so long as he is so employed,
consulting with and giving advise to entities permitted by clause (i) of this
proviso. Territory means North America and the territories of the United States
in the Caribbean, including Puerto Rico.
8. No Interference. During the Restrictive Period, the Executive shall not,
without the prior written approval of the Company, directly or indirectly
through any other Person (i) induce or attempt to induce any employee of the
Company at the level of assistant store manager or higher to leave the employ of
the Company, or in any way interfere with the relationship between the Company
and any employee thereof, (ii) hire any Person who was an employee of the
Company at the level of assistant store manager or higher within twelve months
after such Person's employment with the Company was terminated for any reason or
(iii) induce or attempt to induce any supplier or other business relation of the
Company to cease doing business with the Company, or in any way interfere with
the relationship between any such supplier or business relation and the Company.
9. Return of Documents. In the event of the termination of Executive's
employment for any reason, Executive shall deliver to the Company all of (i) the
property of each of the Company or any of its subsidiaries and (ii) non-personal
documents and data of any nature and in whatever medium of the Company or any of
its subsidiaries, and he shall not take with him any such property, documents or
data or any reproduction thereof, or any documents containing or pertaining to
any Confidential Information.
10. Reasonableness of Restrictions. The Executive agrees that the covenants
set forth in Sections 6, 7 and 8 are reasonable with respect to their duration,
geographical area and scope. In the event that any of the provisions of Sections
6, 7 or 8 relating to the geographic or temporal scope of the covenants
contained therein or the nature of the business or activities restricted thereby
shall be declared by a court of competent jurisdiction to exceed the maximum
restrictiveness such court deems enforceable, such provision shall be deemed to
be replaced herein by the maximum restriction deemed enforceable by such court.
11. Injunctive Relief. The parties hereto agree that the Company would
suffer irreparable harm from a breach by the Executive of any of the covenants
or agreements contained herein, for which there is no adequate remedy at law.
Therefore, in the event of the actual or threatened breach by the Executive of
any of the provisions of this Agreement, the Company, or their respective
successors or assigns, may, in addition and supplementary to other rights and
remedies existing in their favor, apply to any court of law or equity of
competent jurisdiction for specific performance, injunctive or other relief in
order to enforce compliance with, or prevent any violation of, the provisions
hereof. and that, in the event of such a breach or threat thereof, the Company
shall be entitled to obtain a temporary restraining order and/or a preliminary
or permanent injunction restraining the Executive from engaging in activities
prohibited hereby or such other relief as may be required to specifically
enforce any of the covenants contained herein.
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12. Extension of Restricted Periods. In addition to the remedies the
Company may seek and obtain pursuant to this Agreement, the restricted periods
set forth herein shall be extended by any and all periods during which the
Executive shall be found by a court to have been in violation of the covenants
contained herein.
13. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
"Cause" means with respect to the termination by the Company of the
Executive as an employee of the Company or a Subsidiary of the Company:
(i) continual or deliberate neglect by the Executive in the
performance of his material duties;
(ii) failure by the Executive to devote substantially all of his
working time to the business of the Company and its Subsidiaries;
(iii) the Executive's engaging willfully in misconduct in
connection with the performance of any of his duties, including,
without limitation, the misappropriation of funds or securing or
attempting to secure personally any profit in connection with any
transaction entered into on behalf of the Company or its Subsidiaries;
(iv) the Executive's willful failure to follow the lawful
directives of the Board of Directors of the Company in any material
respect, or violation, in a material respect, of any code or standard
of behavior generally applicable to employees of the Company or its
Subsidiaries;
(v) the Executive's breach of the material provisions of this
Agreement or any other non-competition, non-interference,
non-disclosure, confidentiality or other similar agreement executed by
the Executive with the Company or any of its Subsidiaries or other
active disloyalty to the Company or any of its Subsidiaries
(including, without limitation, aiding a competitor or unauthorized
disclosure of confidential information); or
(vi) the Executive's engaging in conduct which is reasonably
likely to result in material injury to the reputation of the Company
or any of its Subsidiaries, including, without limitation, commission
of a felony, fraud, embezzlement or other crime involving moral
turpitude;
provided that with respect to the events set forth in clauses (i), (ii), (iii)
and (iv), the Executive shall have been given written notice of the act,
omission or event constituting Cause and shall not have cured such act, omission
or event within 30 days after the giving of such notice.
"Disability" means permanent disability or permanent incapacity of the
Executive as defined in the Company's disability insurance policy applicable to
the Executive, or in the absence of such definition, as determined by the Board
of Directors in good faith.
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"EBITDA" has the meaning given to such term in Exhibit E.
"Substantial Breach" means with respect to the termination by the Executive
of his employment by the Company or a Subsidiary of the Company:
(i) a reduction in the Executive's Annual Base Salary;
(ii) the demotion of the Executive from his positions as
Chairman, Chief Executive Officer and President of the Company (except
in connection with termination of the Executive for Cause, by reason
of his death or Disability, or termination by the Executive of his
employment other than as a result of a Substantial Breach); provided
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that neither the voluntary relinquishment by the Executive of one or
more titles in connection with a change in management organization,
nor the employment of a Chief Operating Officer or President who
reports to the Executive shall be deemed demotion of the Executive
from the foregoing positions; or
(iii) sale of the stock (other than pursuant to a public
offering) or assets of the Company resulting in a Person who is not a
Shareholder or affiliate or Permitted Transferee (as defined in the
Shareholders Agreement among the Company and its Shareholders) of a
Shareholder on the date hereof owning more than a majority of the
outstanding shares of common stock of the Company and the acquiring
Person or the Company does not assume or reaffirm its obligations to
the Executive under this Agreement;
provided that in order to assert that a Substantial Breach has occurred, the
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Executive shall have given written notice to the Company within 30 days of the
occurrence of such event setting forth in reasonable detail setting forth the
circumstances claimed to give rise to the Substantial Breach and stating that he
is terminating his employment with the Company and its Subsidiaries by reason of
the occurrence thereof unless the Company shall have cured such events or
circumstances to the reasonable satisfaction of the Executive within such 30-day
period.
14. Choice of Law; Disputes; Resolution.
(a) All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with,
the laws of the State of Colorado, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of
Colorado or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Colorado. Resolution of
any and all disputes arising from or in connection with this Agreement,
whether based on contract, tort, or otherwise (collectively, "Disputes"),
shall be exclusively governed by and settled in accordance with the
provisions of this Section.
(b) The parties hereto shall use all reasonable efforts to settle all
Disputes without resorting to arbitration. If any Dispute remains unsettled
after 30 days' good faith effort to resolve the Dispute, a party hereto may
commence proceedings hereunder by delivering a written notice from one to
the other such party (the "Demand") providing
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reasonable description of the Dispute to the others and expressly
requesting arbitration hereunder, which arbitration shall be final,
conclusive and binding upon the parties, their successors and assigns.
(c) The arbitration shall be conducted in Denver, Colorado by three
arbitrators acting by majority vote (the "Panel") appointed pursuant to the
commercial arbitration rules of the American Arbitration Association, as
amended from time to time (the "AAA Rules"). If an arbitrator so selected
becomes unable to serve, his or her successors shall be similarly selected
or appointed. The arbitration shall be conducted pursuant to the AAA Rules.
Notwithstanding the foregoing: (i) each party shall provide to the other,
reasonably in advance of any hearing, copies of all documents which a party
intends to present in such hearing; and (ii) each party shall be allowed to
conduct reasonable discovery through written requests for information,
document requests, requests for stipulation of fact and depositions, the
nature and extent of which discovery shall be determined by the parties;
provided that if the parties cannot agree on the terms of such discovery,
the nature and extent thereof shall be determined by the Panel which shall
taken into account the needs of the parties and the desirability of making
discovery expeditious and cost effective. The award shall be in writing and
shall specify the factual and legal basis for the award. The parties hereto
agree that monetary damages may be inadequate and that any party by whom
this Agreement is enforceable shall be entitled to seek specific
performance of the arbitrators' decision from a court of competent
jurisdiction, in addition to any other appropriate relief or remedy;
provided that no claimed or actual breach of any provision of this
Agreement that survives the execution hereof shall be cause for rescission
of this Agreement, the only remedies shall be claims for damages that were
approximately caused by the breach, or specific performance. Any
arbitration award shall be binding and enforceable against the parties
hereto and judgment may be entered thereon in any court of competent
jurisdiction.
15. Expenses. Each party will pay their own costs and expenses (including
court costs, fees of arbitration proceedings, and reasonable attorneys' fees)
incurred as a result of any claim, action or proceeding arising out of, or
challenging the validity or enforceability of, this Agreement or any provision
hereof.
16. Taxes. The Company may withhold from any payments made under this
Agreement all federal, state, city or other applicable taxes as shall be
required pursuant to any law, governmental regulation or ruling.
17. Entire Agreement. This Agreement, those documents expressly referred to
herein and other documents of even date herewith (including the
Non-Interference, Non-Disclosure and Non-Competition Agreement among the
Company, the Executive and others) embody the complete agreement and
understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
18. Amendment and Waiver. The provisions of this Agreement may be amended
or waived only with the prior written consent of the Board of Directors of the
Company (or a person expressly authorized thereby) and the Executive, and no
course of conduct or failure or delay in
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enforcing the provisions of this Agreement shall affect the validity, binding
effect or enforceability of this Agreement.
19. Miscellaneous.
(a) Binding Effect. This Agreement is intended to bind and inure to
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the benefit of and be enforceable by the Executive, the Company and their
respective heirs, successors and assigns, except that the Executive may not
assign his rights or delegate his obligations hereunder without the prior
written consent of the Company.
(b) Notices. All notices required to be given hereunder shall be in
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writing and shall be deemed to have been given if (i) delivered personally
or by documented courier or delivery service, (ii) transmitted by facsimile
during normal business hours or (iii) mailed by registered or certified
mail (return receipt requested and postage prepaid) to the following listed
persons at the addresses and facsimile numbers specified below, or to such
other persons, addresses or facsimile numbers as a party entitled to notice
shall give, in the manner hereinabove described, to the others entitled to
notice:
(i) If to the Company, to:
Red Xxxxx International, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Board of Directors
and Xxxx X. Xxxxx
Facsimile No.: 000-000-0000
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: 000-000-0000
(ii) If to the Executive, to:
Xxxxxxx X. Xxxxxx
Red Xxxxx International, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
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with a copy to:
Powers & Xxxxxxxx, X.X.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
and Xxxxxx Xxxxxx
Facsimile No.: 000-000-0000
If given personally or by documented courier or delivery service, or transmitted
by facsimile, a notice shall be deemed to have been given when it is received.
If given by mail, it shall be deemed to have been given on the third business
day following the day on which it was posted.
(c) Survival. Sections 6 through 19, inclusive, and, if Executive's
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employment terminates in a manner giving rise to a payment under Section
5(a), Section 5(a), shall survive the termination of the employment of
Executive hereunder.
(d) Headings. The section and other headings contained in this
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Agreement are for the convenience of the parties only and are not intended
to be a part hereof or to affect the meaning or interpretation hereof.
(e) Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
(f) No Strict Construction. The language used in this Agreement will
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be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against
any party.
20. Effectiveness. This Agreement shall become effective upon consummation
of the Transaction. If the Merger Agreement or the Subscription Agreement is
terminated in accordance with its terms, this Agreement shall automatically be
deemed to have been terminated and shall thereafter be of no force or effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
RED XXXXX INTERNATIONAL, INC.
By: /s/ Xxxxx X. XxXxxxxxx
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Xxxxx X. XxXxxxxxx
Chief Financial Officer
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Xxxxxxx X. Xxxxxx
S-1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
RED XXXXX INTERNATIONAL, INC.
By:
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Xxxxx X. XxXxxxxxx
Chief Financial Officer
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
S-1
List of Omitted Exhibits and Schedules
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The following exhibits and schedules to the Employment Agreement have been
omitted and shall be furnished supplementally to the Commission upon request:
Exhibit A - Authorization Limits
Exhibit B - Annual Incentive Compensation Plan
Exhibit 1-Red Xxxxx International and Subsidiaries Annual
Incentive Compensation Plan for Key Management
Management Group Participants
Exhibit C - Option Grant Letter (400,000 shares)
Exhibit D - Option Grant Letter (1,100,000 shares)
Schedule 1 - Restaurants That May Be Closed
