MEMORANDUM OF UNDERSTANDING
This MEMORANDUM OF UNDERSTANDING is made effective as of October 5,
2002, by and between XXX XXXXXX ("Employee") and XXXXXXXX'X INTERNATIONAL, INC.,
a Delaware Corporation ("Company") (collectively "the parties").
WHEREAS, the parties desire to set forth their understanding of the
terms and conditions of (1) Employee's continued full-time employment with
Company as Company's Chief People Officer, (2) Employee's continued employment
with Company after conclusion of Employee's full-time employment with Company as
Chief People Officer, and (3) the general terms and conditions of Employee's
separation from Company.
NOW, THEREFORE, in consideration of the premises and the mutual terms
and conditions hereof, Company and Employee hereby agree as follows:
1. Employee's Full-Time Employment With Company. Regarding Employee's
continued full-time employment with Company as Company's Chief People Officer:
(a) Employee shall remain employed full-time as Company's
Chief People Officer until such time as his successor as Company's
Chief People Officer is selected and in place, and for a transition
period thereafter, but for no longer than through May 1, 2004;
(b) During any continued employment of Employee as Company's
Chief People Officer, Employee shall (1) receive the base salary
applicable to the Chief People Officer position, including, but not
limited to, appropriate adjustments in base salary based on performance
as determined by Company in its sole and exclusive discretion; (2)
receive bonuses applicable to the Chief People Officer position at the
normal bonus percentages and subject to the terms and conditions of the
Company's bonus plan, including a bonus for year 2004, payable in the
first quarter of 2005 even though the Employee will not be employed on
the payment date; (3) be eligible to receive appropriate stock option
grants, including for 2004 (any options granted in 2002, 2003 and 2004
will provide continued vesting after retirement); (4) be eligible to
receive payouts for earlier granted performance share awards as
described in each Performance Share Award Agreement but not new award
grants under Company's performance share payout program (unless the
Compensation Committee decides to include performance share awards in a
retirement program generally applicable to executive officers); (5) be
eligible for the benefits attendant to the Chief People Officer
position, including, but not limited to, applicable medical, dental,
drug, and vision coverage; and (6) be eligible for any and all other
benefits or perquisites of employment attendant to the Chief People
Officer position; and
(c) Employee understands Employee's continued employment as
Company's Chief People Officer is subject to Company's employment
practices and policies applicable to the Chief People Officer position
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during such continued employment and is at all times at-will in all
respects, which means, among other things, it is of not of any definite
duration, can be terminated at any time for any lawful reason or for no
reason, and remains subject to Employee's continued satisfactory
performance, in Company's sole and exclusive discretion, of the Chief
People Officer duties and responsibilities and any other duties and
responsibilities Employee is assigned from time to time.
2. Employee's Post Full-Time Employment With Company. Regarding
Employee's continued employment with Company from May 1, 2004 through November
1, 2004:
(a) Employee shall be employed part-time by Company for up to
six months, during which part-time employment Employee shall (1)
perform special project work for up to twenty-five (25) hours per week
as reasonably requested by Company's Chief Executive Officer, Chief
Operating Officer, and/or then Chief People Officer, as the case may
be; (2) continue to receive the base salary Employee received on his
last day of full-time employment as Company's Chief People Officer,
less applicable deductions and withholdings, according to Company's
then existing payroll schedule; (3) remain eligible to elect coverage
under Company's employee medical, dental, drug, and vision plans as
Employee is enrolled in such plans on his final day of full-time
employment as Company's Chief People Officer, with Company paying the
employer portion of premiums for any such elected coverage; (4) be
eligible to receive payouts for earlier granted performance share
awards as described in each Performance Share Award Agreement but not
new award grants under Company's performance share payout program; (5)
be eligible to participate in the benefits and perquisites applicable
to direct reports of Company's Chief Executive Officer, including, but
not limited to, executive physical, retirement/tax/financial planning,
and long-term disability insurance; and (6) be eligible to receive
appropriate stock option grants (any options granted in 2002, 2003 and
2004 will provide continued vesting after retirement); and
(b) Employee understands Employee's part-time employment with
Company is subject to Company's employment practices and policies
applicable to such position during such part-time employment and is at
all times at-will in all respects, which means, among other things, it
is of not of any definite duration, can be terminated at any time for
any lawful reason or for no reason, and remains subject to Employee's
continued satisfactory performance, in Company's sole and exclusive
discretion, of duties and responsibilities Employee is assigned from
time to time.
3. Employee's Separation From Company. Provided Employee remains
employed by Company as contemplated by paragraphs 1 and 2 of this Memorandum of
Understanding, Employee agrees he will retire from Company on November 1, 2004
and thereby be entitled to any and all applicable retirement benefits. Employee
further agrees that, if requested, upon any separation from Company, he will
fully release and forever discharge Company by executing a separation agreement
containing a release similar to that set forth below:
Employee (and anyone acting on Employee's behalf) hereby
RELEASES AND FOREVER DISCHARGES Company (including all of its current
and/or former insurers, current and/or former directors, current and/or
former officers, current and/or former fiduciaries, current and/or
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former employees, current and/or former agents, current and/or former
successors, current and/or former assigns, current and/or former
related corporations, current and/or related entities, and any and all
other entities currently and/or formerly affiliated with or related to
it (collectively hereinafter "Company Affiliates")), to the maximum
extent permitted by law, from any and all claims, demands, and causes
of action ("claims") Employee had or may have had against Company
(including any Company Affiliates) up to the date Employee signs this
Agreement, which claims include, but are not limited to, claims for
attorney's fees; claims under any local, state, and/or federal
statutory or common law, including, but not limited to, claims for
libel, slander, defamation, breach of contract, and/or wrongful
termination; claims for discrimination under any local, state, and/or
federal statutory or common law, including, but not limited to, any and
all claims under 42 U.S.C. xx.xx. 1981 and 1983, Title VII of the Civil
Rights Act of 1964 (as amended), the Civil Rights Act of 1991, the
Americans With Disabilities Act, the Age Discrimination in Employment
Act, the Employee Retirement Income Security Act, the Family and
Medical Leave Act, the Kansas Act Against Discrimination, and the
Missouri Human Rights Act; claims under the U.S. Constitution and/or
any state constitution, including the State of Kansas and the State of
Missouri; claims under any other local, state, and/or federal statutory
or common law not specifically referenced in this paragraph; and claims
under any other agreement with Company or under any of Company's
policies and/or practices.
4. Termination Without Cause.
(a) In the event the Company terminates Employee prior to
October 31, 2004 other than for Cause, then (i) the Company will pay to
Employee, beginning the month following the month of such termination,
in 24 equal monthly installments, an amount equal to two (2) times his
then current annual base salary, subject to all applicable payroll
taxes and deductions, and (ii) the 12 month post-termination periods
under Sections 2(a) and 2(b) of the Confidentiality, Non-Solicitation
and Non-Competition Agreement dated of even date herewith will
automatically be extended to 24 months.
(b) The following shall constitute "Cause":
(i) Employee is convicted of -- or pleads no contest / nolo
contendre to -- any felony or any other serious criminal
offense; or
(ii) Employee breaches any material provision of this
Agreement or habitually neglects to perform his duties under
this Agreement (other than for reasons related to illness,
injury or temporary disability) and such breach or neglect is
not corrected in the Company's good faith belief within
fifteen (15) business days after receipt of written notice
from the Chief Executive Officer; or
(iii) Employee breaches any provision of the confidentiality,
Non-Solicitation and Non-Competition Agreement of even date
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herewith, and such breach is not corrected in the Company's
good faith belief within five (5) business days after receipt
of written notice from the Chief Executive Officer; or
(iv) Employee is determined to have violated any applicable
local, state or federal law relating to discrimination or
harassment through egregious conduct; or
(v) Employee dies or becomes permanently disabled from
continuing to provide the level of service required under this
Agreement.
5. Restrictions on Employee's Activities. Employee agrees immediately
to execute the Confidentiality, Non-Solicitation, and Non-Competition Agreement
attached hereto.
Dated: October 5, 2002 By:/s/ Xxx Xxxxxx
--------------- -----------------------------------
Xxx Xxxxxx
Dated: October 9, 2002 Xxxxxxxx'x International, Inc.
---------------
By:/s/ Xxxxx Xxxx
--------------------------------
Title:
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CONFIDENTIALITY, NON-SOLICITATION AND
NON-COMPETITION AGREEMENT
This Confidentiality, Non-Solicitation, and Non-Competition Agreement
("Agreement") is made effective as of October, 5, 2002 by and between XXX XXXXXX
("Employee") and XXXXXXXX'X INTERNATIONAL, INC., a Delaware Corporation
("Company") (collectively "the parties").
This Agreement is not an employment contract, and the employment
relationship between Company and Employee is and remains at all times at will in
all respects.
In consideration of the employment/continued employment of Employee by
Company as outlined in the parties' Memorandum of Understanding and in
consideration of the promises contained in this Agreement, the sufficiency and
adequacy of which consideration Employee hereby acknowledges and accepts,
Employee and Company agree as follows.
1. Non-Disclosure and Return of Confidential Information. Employee
acknowledges his position with Company is one of the highest trust and
confidence both by reason of his position and by reason of his access to and
contact with the trade secrets and confidential and proprietary business
information of Company. Both during Employee's employment with Company and after
the termination of Employee's employment with Company for any reason by either
Employee or Company, Employee agrees as follows:
a. He shall use his best efforts and exercise utmost diligence
to protect and safeguard the trade secrets and confidential and
proprietary information of Company, including but not limited to the
identity of its customers and suppliers, its arrangements with
customers and suppliers, and its technical and financial data, records,
compilations of information, processes, recipes, and specifications
relating to its customers, suppliers, products, and services;
b. He shall not disclose any of such trade secrets and
confidential and proprietary information, except as may be required in
the course of his employment with Company or by law; and
c. He shall not use, directly or indirectly, for his own
benefit or for the benefit of another, any of such trade secrets and
confidential and proprietary information.
All files, records, documents, drawings, specifications, memoranda, notes, or
other documents relating to the business of Company, whether prepared by
Employee or otherwise coming into his possession, shall be the exclusive
property of Company and shall be delivered to Company and not retained by
Employee upon termination of his employment for any reason whatsoever or at any
other time upon request of Company.
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2. Non-Solicitation Agreement.
a. Non-Solicitation of Employees. Employee agrees that during
Employee's employment with Company, and for a period of twelve (12)
months after termination of Employee's employment with Company for any
reason by either Employee or Company, Employee will not directly or
indirectly for himself or for any third party, except as otherwise
agreed to in writing by Company's Chief Executive Officer, employ or
hire any other person who is then employed by Company, or solicit,
induce, recruit, or cause any other person who is then employed by
Company to terminate his/her employment for the purpose of joining,
associating, or becoming employed with any business or activity that is
engaged in the casual dining restaurant industry or any other segment
of the restaurant industry in which Company may become involved after
the date hereof and prior to the date of any termination of Employee's
employment with Company for any reason by either Employee or Company.
b. Non-Solicitation of Customers. Employee agrees that during
Employee's employment with Company, and for a period of twelve (12)
months after termination of Employee's employment with Company for any
reason by either Employee or Company, Employee will not directly or
indirectly solicit, divert, or take away, or attempt to solicit,
divert, or take away, the business or patronage of any of the clients,
customers, or accounts, or prospective clients, customers, or accounts,
of Company.
3. Non-Competition Agreement
a. Restriction on Competition. Employee agrees that, during
Employee's employment with Company, and for two (2) years after
termination of Employee's employment with Company for any reason by
either Employee or Company, Employee will not compete with the business
of Company or its successors or assigns in any geographic area serviced
by Company. This agreement not to compete means, among other things,
Employee shall not, without the prior written consent of Company's
Chief Executive Officer, directly or indirectly, as an employee,
employer, consultant, agent, principal, partner, shareholder, corporate
officer, director, or through any other kind of ownership (other than
ownership of securities of publicly held corporations of which Employee
owns less than five percent 5% of any class of outstanding securities)
or in any other representative or individual capacity, engage in or
render any services to any business in North America engaged in the
casual dining restaurant industry or in any other segment of the
restaurant industry in which Company or any subsidiary of Company may
become involved after the date hereof and prior to the date of
termination of Employee's employment with Company for any reason by
either Employee or Company. For purposes of this Agreement, "casual
dining restaurant industry" consists of "sit down table service"
restaurants serving alcoholic beverages, with a per guest average guest
check within the United States of under $20.00 (adjusted upward each
year to recognize Company menu price increases).
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4. General Provisions.
a. Judicial Modification. Company and Employee specifically
acknowledge and agree that the foregoing covenants of Employee in
paragraphs 1-3 are reasonable in content and scope and are given by
Employee for adequate consideration. Company and Employee further
acknowledge and agree that, if any court of competent jurisdiction or
other appropriate authority shall disagree with the parties' foregoing
agreement as to reasonableness, then such court or other authority
shall reform or otherwise the foregoing covenants as reason dictates.
b. Equitable Relief. The restrictions contained in paragraphs
1-3 are necessary for the protection of the legitimate business
interests, goodwill, trade secrets, and confidential and proprietary
information of Company. Employee agrees any breach of paragraphs 1-3
will cause Company substantial and irrevocable damage. Employee further
agrees that, in addition to such other remedies that may be available,
including the recovery of damages from Employee, Company shall have the
right to injunctive relief to restrain or enjoin any actual or
threatened breach of the provisions of paragraphs 1-3, without posting
bond. If Company prevails in a legal proceeding to remedy a breach or
threatened breach of this Agreement, then Company shall be entitled to
receive reasonable attorney's fees, expert witness fees, and
out-of-pocket costs incurred in connection with such proceeding, in
addition to any other relief it may be granted.
c. Severability. The terms and provisions of this Agreement
are severable in whole or in part, and if any term or provision of this
Agreement is deemed invalid, illegal, or unenforceable by a court of
competent jurisdiction, the remaining terms and provisions shall remain
in full force and effect.
d. Assignment. This Agreement is personal and not assignable
by Employee. Company may assign this Agreement to any successor in
interest to the business, or part thereof, of Company.
e. Governing Law and Consent to Jurisdiction. This Agreement
and all disputes relating to Employee's employment with Company shall
be subject to, governed by, and construed in accordance with the laws
of the State of Kansas, irrespective of the fact that one or both of
the parties now is or may become a resident of a different state.
Employee hereby expressly submits and consents to the exclusive
personal jurisdiction and exclusive venue of the federal and state
courts of competent jurisdiction in the State of Kansas.
f. No Conflicting Agreements. Employee represents to Company
(1) there are no restrictions, agreements, or understandings whatsoever
to which employee is a party that would prevent or make unlawful his
execution or performance of this Agreement or his employment hereunder
and (2) Employee's execution of this Agreement and employment with
Company does not constitute a breach of any contract, agreement, or
understanding, oral or written, to which Employee is a party or by
which Employee is bound.
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g. Disclosure of Agreement. In the event Company has reason to
believe this Agreement has or may be breached, Employee acknowledges
and consents that this Agreement may be disclosed by Company, without
risk of liability, to a current or prospective employer of Employee or
other business entity.
h. Survival. The obligations contained in this Agreement
survive the termination, for whatever reason, of Employee's employment
with Company.
i. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to its subject matter and
supersedes all prior agreements or understandings, if any, between the
parties with respect to the employment of Employee. This Agreement may
be modified or amended only by an agreement in writing signed by both
parties.
j. No Waiver. The failure of either party to insist on the
performance of any of the terms or conditions of this Agreement, or
failure to enforce any of the provisions of this Agreement, shall not
be construed as a waiver or a relinquishment of any such provision. Any
waiver or failure to enforce on any one occasion is effective only in
that instance, and the obligations of either party with respect of any
provision in this Agreement shall continue in full force and effect.
THE PARTIES ARE CAUTIONED THAT, BY COMPLETING AND EXECUTING THIS
AGREEMENT, LEGAL RIGHTS AND DUTIES ARE CREATED. THEY ARE ADVISED TO CONSULT
INDEPENDENT LEGAL COUNSEL AS TO ALL MATTERS CONTAINED IN THIS DOCUMENT.
Date: October 5, 2002 /s/ Xxx Xxxxxx
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Xxx Xxxxxx
Xxxxxxxx'x International, Inc.
Date: October 9, 2002 By: /s/ Xxxxx Xxxx
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Title:
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