EXHIBIT 10.3
▇▇▇ ▇▇▇ ROO, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
WITH
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is entered into as of 24
March 1998 by and between ▇▇▇ ▇▇▇ Roo, Inc., a Delaware corporation ("Company"),
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Employee"), with reference to the following facts:
R E C I T A L S
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A. Company is in the restaurant business and operates ▇▇▇ ▇▇▇ Roo
California Kitchens, Hamburger Hamlets and Arrosto Coffee stores.
B. Employee has been employed by Company since 3 May 1996.
C. Company and Employee desire to assure the Company of the services of
Employee and to set forth the rights and duties of the parties.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
A G R E E M E N T S
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1. EMPLOYMENT.
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(a) Company hereby agrees to employ Employee, and Employee hereby
accepts and agrees to employment by the Company, on the terms and conditions set
forth herein.
(b) Employee shall serve in the capacity of General Counsel/Corporate
Secretary of the Company. Employee shall perform such services and duties with
the Company as are usually associated with the position of General
Counsel/Corporate Secretary. Employee shall report directly to the Chief
Executive Officer of the Company. Employee further agrees that, except during
vacation periods or in accordance with Company's personnel policies covering
executive leaves and reasonable periods of illness or other incapacitation,
Employee shall devote his full time and services to the business and interests
of the Company. Notwithstanding the foregoing, Employee shall also be permitted
to serve on the boards of directors of other business corporations and may
participate in charitable, cultural, professional, civic and business
association activities. Employee shall perform the duties of his office and
those assigned to him by the Company's Chief Executive Officer with fidelity, to
the best of his ability, and in the best interests of the Company.
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2. Term of Employment.
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Employee's term of employment by the Company pursuant to this Agreement
shall commence as of 24 March 1998 (the "Effective Date") and shall continue
thereafter for a period of one (1) year unless otherwise terminated pursuant to
the provisions of Section 6 below (the "Employment Term"). This Agreement shall
automatically renew each year for an additional year unless Company notifies
Employee in writing not less than 90 days prior to its expiration date that
Company shall not renew this Agreement.
3. Compensation & Duties.
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(a) During the Employment Term, the Company shall pay Employee a base
salary at the annual rate equal to $175,000.00. Said base salary shall be
payable in cash in equal installments on a semi-monthly basis, or in accordance
with such other salary payment schedule as the Company may adopt for its
employees generally.
(b) Employee shall receive a monthly car allowance of $600.00 plus
reimbursement for all car repairs, license fees and insurance.
(c) During the Employment Term, Employee shall be entitled to the
following benefits provided by the Company: (1) medical and dental insurance,
providing coverage on terms no less beneficial than those afforded other senior
executives of the Company from time to time; (2) participation in any pension,
profit sharing or similar retirement plans as may be implemented by the Company
on terms no less beneficial than those afforded other senior executives of the
Company from time to time; (3) a suitable office and furnishings; and (4) such
other benefits as the Company may provide from time to time on terms no less
beneficial than those afforded other senior executives of the Company.
(d) Company shall continue to cover Employee on its Director and
Officer insurance and indemnification policies. Additionally, Company hereby
indemnifies and holds harmless Employee from any losses, damages, claims, and
causes of action arising out of the actions or inactions of the Board of
Directors and/or the officers of the Company for any period before March 24,
1998.
(e) As of March 24, 1998, the Company has granted to Employee options
to purchase 250,000 shares of the Company's common stock as follows:
Option Price per Vesting Period to Exercise
Shares Options Date After Vesting Period
------ ------- ---- --------------------
250,000 $1.56 150,000 vested 10 years
100,000 vested over three
three (3) years commencing
3/24/97
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With regard to the foregoing options, all options shall immediately vest
upon any Change of Control (as hereinafter defined), termination without cause
or termination for good reason.
4. Employee Expenses.
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Subject to such policies as may be maintained in effect from time to
time by the Company, Employee shall be entitled to reimbursement of amounts
expended for the benefit of the Company, including professional dues and
expenses, during the Employment Term, upon presentation of acceptable reports of
such expenses.
5. Confidential Information.
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Employee specifically agrees that he will not at any time, whether
during or subsequent to the Employment Term, in any fashion, form, or manner,
unless specifically consented to in writing by Company, either directly or
indirectly use or divulge, disclose or communicate to any person, firm or
corporation, any confidential information of any kind, nature, or description
concerning any matters affecting or relating to the business of Company, except
in the ordinary course of the Company's business. All equipment, notebooks,
documents, memoranda, reports, recipes, formulas, files, samples, books,
correspondence, lists, other written and graphic records, and the like,
affecting or relating to the business of Company, which Employee shall prepare,
use, construct, observe, posses, or control shall be and remain the Company's
sole property. The foregoing confidentiality obligation shall not apply to
information (i) Employee deems necessary to disclose pursuant to any
governmental, judicial or regulatory investigation, proceeding or order; (ii) as
is in the public domain through no fault of Employee; or (iii) as is obtained by
Employee from a source other than the Company which is not bound by a similar
confidentiality obligation. Employee has executed the Company's current
Confidentiality Agreements as part of the SEC Compliance document which all new
employees are provided.
6. Termination with Cause.
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(a) The employment of Employee may be terminated at any time for
"cause." For the purpose of this Agreement "cause" shall mean:
(1) Employee's continued willful and habitual neglect of his
duties following written notification of such neglect by Company's Chief
Executive Officer and the failure of Employee to cure such neglect within thirty
(30) days of such notice.
(2) Employee's conviction of a felony or any other conduct
which, by its nature, would materially injure the reputation of Company as
determined by Company's Chief Executive Officer acting in good faith and upon
reasonable grounds.
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(3) Employee's incapacity to perform the duties required of
him hereunder as a result of mental or physical illness, which incapacity
continues for a period of ninety (90) days.
(4) Death of the Employee.
(b) Termination of Employee's employment shall not be in limitation of
any other right or remedy the Company may have under this Agreement or in law or
equity.
7. Termination without Cause; Termination with Good Reason; Change in
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Control.
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(a) The Company shall pay to Employee all compensation due for the term of
this Agreement, but in no event less than one year's full salary plus all other
additional compensation, including but not limited to medical and dental
benefits for one year, and the stock options granted in this Agreement shall
vest, notwithstanding Employee's termination of employment before March 23,
1999, if such employment is terminated by the Company without "cause" (as
defined above), or if such employment is terminated by Employee for "Good
Reason", or in the event of a change in control. "Good Reason" shall mean any of
the following: (1) a material and adverse change by the Company in the
Employee's assignments, duties or responsibilities; (2) a Change in Control;
(3) a majority of the Board of Directors currently serving on the Board are
changed; (4) a material breach of this Agreement by Company, which breach is not
cured within thirty (30) days written notice to Company; (5) a reduction in
Employee's salary or any benefits; or (6) the relocation of the Company's
offices to a location more than 20 miles from the present corporate offices.
"Change in Control" shall include but not be limited to an occurrence which
would be required to be reported in response to Item 5(f) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, a
transaction involving 20% or more of the assets, voting control or stock of the
Company, or any other event set forth on Exhibit "1", attached hereto and
incorporated herein by this reference. Such vested options shall be exercisable
by the Employee for a period of ten (10) years from the date of grant.
(b) Any purported termination of Employee's employment by the Company or
Employee must be communicated by written Notice of Termination to the other
party pursuant to (P) 9 below. Notice of Termination shall mean a notice that
shall indicate the specific termination provision in this Agreement.
(c) Date of Termination, Etc. "Date of Termination" shall mean the date
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specified in the Notice of Termination (which, in the case of a termination for
Cause shall not be less than thirty (30) days from the date such Notice of
Termination is given, and in the case of a termination for Good Reason shall not
be less than fifteen (15) nor more than sixty (60) days from the date such
Notice of Termination is given). Notwithstanding anything to the contrary
contained herein if within fifteen (15) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, then the Date of Termination
shall be the date on which the dispute is finally
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determined, either by mutual written agreement of the parties, or as set forth
in paragraph 15; provided, however, that the Date of Termination shall be
extended by a notice of dispute only if such notice is given in good faith and
the party giving such notice pursues the resolution of such dispute with
reasonable diligence.
(d) If Employee's employment is terminated by the Company for Cause, the
Company shall pay Employee his full base salary, when due, through the Date of
Termination at the rate in effect at the time Notice of Termination is given,
plus all other amounts to which Employee is entitled under any compensation plan
of the Company at the time such payments are due, and the Company shall have no
further obligations to Employee under this Agreement.
(e) If Employee's employment by the Company shall be terminated by Employee
for Good Reason or by the Company other than for Cause, then Employee shall be
entitled to the benefits provided below:
(i) the Company shall pay to Employee his full base salary, when due,
through the Date of Termination at the rate in effect at the time Notice of
Termination is given, plus all other amounts to which Employee is entitled under
any compensation plan of the Company at the time such payments are due;
(ii) in lieu of any further salary payments to Employee for periods
subsequent to the Date of Termination, the Company shall pay as severance pay,
at the time specified below, a lump sum severance payment (together with the
payments provided herein below, the "Severance Payments") equal to 100% of
Employee's annual salary as in effect as of the Date of Termination or
immediately prior to the Change in Control, whichever is greater;
(iii) notwithstanding any provisions of the Company's Stock Option and
Incentive Plans, or other similar plans, the vesting period with respect to your
250,000 options to purchase KKRO common stock at $1.56 per share shall be vested
immediately and you will have 10 years to exercise these options;
(iv) the Company shall pay to Employee all reasonable legal fees and
expenses incurred by Employee as a result of such termination (including all
such fees and expenses, if any, incurred in contesting or disputing any such
termination or in seeking to obtain or enforce any right or benefit provided by
this Agreement (as set forth in (P)14 of this Agreement) or in connection with
any tax audit or proceeding to the extent attributable to the application of
section 4999 of the Code, to any payment or benefit provided hereunder); and
(v) for a twelve (12) month period after such termination, the
Company shall arrange to provide Employee with life, disability, dental,
medical, accident and group health insurance benefits substantially similar to
those that you were receiving immediately prior to the Notice of Termination.
(vi) The payments provided for above (P)7(e)(i) shall be made not
later than the fifth day following the Date of Termination. The payments
provided for in (P)7(e)(ii)
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shall be made not later than the thirtieth day following the Date of
Termination; provided, however, that if the amounts of such payments cannot be
finally determined on or before such day, the Company shall pay to Employee on
such day an estimate, as determined in good faith by the Company, of the minimum
amount of such payments and shall pay the remainder of such payments (together
with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon
as the amount thereof can be determined but in no event later than the thirtieth
day after the Date of Termination. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have been due, such
excess shall constitute a loan by the Company to Employee, payable on the fifth
day after demand by the Company (together with interest at the rate provided in
section 1274(b)(2)(B) of the Code).
(vii) Employee shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise
nor shall the amount of any payment or benefit provided for in this Agreement be
reduced by any compensation earned by Employee as the result of employment by
another employer or self-employment, by retirement benefits, by offset against
any amount claimed to be owed by Employee to the Company, or otherwise.
7. Severable Provisions.
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The provisions of this Agreement are severable, and if any one or more
provisions may be determined to be judicially unenforceable, in whole or in
part, the remaining provisions shall nevertheless be binding and enforceable.
8. Successors; Binding Agreement. (i) The Company shall require any
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successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Failure of the Company to obtain such
assumption and agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle Employee to terminate his
employment and receive compensation from the Company in the same amount and on
the same terms to which Employee would be entitled hereunder if Employee
terminated his employment for Good Reason or Change in Control, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. Where the context
requires, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(ii) This Agreement shall inure to the benefit of and be enforceable by
Employee and Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Employee should die while any amount would still be payable to Employee
hereunder had Employee continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
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Employee's devisee, legatee or other designee or, if there is no such designee,
to Employee's estate.
9. Notices
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Any notice to be given to the Company under the terms of this Agreement
shall be addressed to the Company at the address of its principal place of
business, and any notice to be given to Employee shall be addressed to him at
his home address last shown on the records of the Company, or at such other
address as either party may hereafter designate in writing to the other. All
Notices shall be in writing and shall be delivered personally, sent by United
States certified or registered mail, return receipt requested, first class
postage prepaid, or by private messenger or courier service. Any such notice
shall be deemed to have been received on the earlier of (i) two (2) business
days after it is mailed or (ii) the date it is actually received.
10. Waiver.
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Either party's failure to enforce any provision or provisions of this
Agreement shall not in any way be construed as a waiver of any such provision,
or prevent that party thereafter from enforcing each and every other provision
of this Agreement.
11. Title and Headings
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Titles and headings to sections in this Agreement are for the purpose
of reference only and shall in no way limit, define, or otherwise affect the
provisions of it.
12. Governing Law.
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The parties hereto agree that it is their intention and covenant that
this Agreement and performance under it, and all suits and special proceedings
that may ensue from its breach, be construed in accordance with and under the
laws of the State of California, and that in any action, special proceeding, or
other proceeding that may be brought arising out of, in connection with, or by
reason of this Agreement, the laws of the State of California shall be
applicable and shall govern to the exclusion of the law of any other forum,
without regard to the jurisdiction in which any action or special proceeding may
be instituted.
13. Entire Agreement
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This Agreement, any other written agreement executed concurrently
therewith, and the documents referred to herein, shall be construed together and
constitute the entire agreement between the parties pertaining to the subject
matter hereof. Any prior agreements are superseded. There are no warranties,
conditions, or representations (including any that may be implied by statute)
and there are no agreements in connection with such subject matter except as
specifically set forth or referred to in this Agreement. No reliance is placed
on any warranty, representation, opinion, advice or assertion of fact made by
any party hereto or its directors, officers,
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employees or agents, to any other party hereto or its directors, officers,
employees or agents, except to the extent that the same has been reduced to
writing and included as a term of this Agreement. Accordingly, there shall be no
liability, either in tort or in contract, assessed in relation to any such
warranty, representation, opinion, advice or assertion of fact, except to the
aforesaid. No amendment, change or variance from this Agreement shall be binding
on either party unless executed in writing by both parties.
14. Arbitration; Dispute Resolution
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(a) Arbitration Procedure. Any disagreement, dispute, controversy or
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claim arising out of or relating to this Agreement or the interpretation of this
Agreement or any arrangements relating to this Agreement or contemplated in this
Agreement or the breach, termination or invalidity thereof shall be settled by
arbitration in accordance with the Commercial Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA") (except
as otherwise provided in this Agreement) in Los Angeles, California. The
arbitral tribunal shall consist of one arbitrator. In making any decision, the
arbitrator shall apply and follow the substantive law of California without
reference to the conflicts of law provisions thereof. The parties to the
arbitration jointly shall directly appoint such arbitrator within thirty (30)
days of initiation of arbitration. If the parties shall fail to appoint such
arbitrator as provided above, such arbitrator shall be appointed by the AAA as
provided in the Arbitration Rules. Employee and the Company agree that the
arbitral award may be enforced against the parties to the arbitration proceeding
or their assets wherever they may be found and that a judgment upon the arbitral
award may be entered in any court having jurisdiction thereof. The Company
shall pay all fees and expenses of the Arbitrator regardless of the result and
shall provide all witnesses and evidence reasonably required by Employee to
present Employee's case. The Company shall pay to Employee all reasonable
arbitration expenses and legal fees incurred by Employee as a result of a
termination of Employee's employment in seeking to obtain or enforce any right
or benefit provided by this Agreement whether or not you are successful in
obtaining or enforcing such right or benefit). Such payments shall be made
within five (5) days after the Employee's request for payment accompanied with
such evidence of fees and expenses incurred as the Company reasonably may
require.
(b) Compensation During Dispute. Company compensation during any
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disagreement, dispute, controversy or claim arising out of or relating to this
Agreement or the interpretation of this Agreement shall be as follows:
(i) If a purported termination by Employee for Good Reason occurs
and such termination is disputed in accordance with this Agreement, the Company
shall continue to pay Employee the full compensation in effect when the notice
giving rise to the dispute was given (including, but not limited to, salary) and
continue Employee as a participant in all compensation, benefit and insurance
plans in which Employee was participating when the notice giving rise to the
dispute was given, until the dispute is finally resolved in accordance with
(P)15. Amounts paid under this Section 10(ii)(a) are in addition to all other
amounts due under this Agreement and shall not be offset against or reduce any
other amounts due under this Agreement. Employee agrees to remain in the employ
of the Company during the resolution of the dispute and to continue to provide
services unless Employee's employment is terminated
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earlier by death, disability or retirement, or by action of the Company. If the
dispute is resolved by a determination that Employee did not have Good Reason,
this Agreement, in accordance with its terms, shall continue to apply to the
circumstances of Employee's employment by the Company and any termination
thereof.
(ii) If there is a termination by the Company followed by a
dispute as to whether Employee is entitled to the payments and other benefits
provided under this Agreement, then, during the period of that dispute the
Company shall pay Employee fifty percent (50%) of the amount specified in
(P)7(e)(i) and (P)7(e)(ii) hereof, and the Company shall provide Employee with
the other benefits provided in (e) of this Agreement, if, but only if, Employee
agrees in writing that if the dispute is resolved against Employee, Employee
shall promptly refund to the Company all payments Employee receives under (e)(i)
and (e)(ii) of this Agreement plus interest at the rate provided in Section
1274(d) of the Code, compounded quarterly. If the dispute is resolved in
Employee's favor, promptly after resolution of the dispute the Company shall pay
Employee the sum that was withheld during the period of the dispute plus
interest at the rate provided in Section 1274(d) of the Code, compounded
quarterly.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"COMPANY" "EMPLOYEE"
▇▇▇ ▇▇▇ Roo, Inc.,
a Delaware corporation
By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: C.E.O.
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EXHIBIT "1"
"CHANGE IN CONTROL"
In addition to the events described in the Employment Agreement, a Change in
Control shall be deemed to occur if:
(a) any Person (as defined below) is or becomes the Beneficial Owner
(as defined below), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's then
outstanding securities. For purposes of this Agreement, (A) the term
"Person" is used as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided,
however, that unless this Agreement provides to the contrary, the term
shall not include the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any Company
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the
Company, and (B) the term "Beneficial Owner" shall have the meaning given
to such term in Rule 13d-3 under the Exchange Act;
(b) during any period after the execution of this Agreement,
individuals who at the beginning of such period constitute the Board, and
any new director (other than a director designated by a person who has
entered into an agreement with the Company to effect a transaction
described in Sections 2(i)(a), (c) or (d)) whose election by the Board or
nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved (hereinafter referred to
as "Continuing Directors"), cease for any reason to constitute at least a
majority thereof;
(c) the stockholders of the Company approve a merger or
consolidation sale, acquisition, purchase, reverse merger of the Company
with any other Company (or other entity);
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets; or
(e) any Person is or becomes the Beneficial Owner of securities of the
Company representing ten percent (10%) or more of the combined voting power
of the Company's then outstanding securities and (A) the identity of the
Chief Executive Officer of the Company is changed during the period
beginning sixty (60) days before the attainment of the ten percent (10%)
beneficial ownership and ending one (1) year thereafter, or (B) individuals
constituting at least one-third (1/3) of the members of the Board at the
beginning of such period shall leave the Board during the period beginning
sixty (60) days before the attainment of the ten percent (10%) beneficial
ownership and ending one (1) year thereafter.
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