Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made and effective as of May 1, 1998, by
and between XXXX X. XXXXXX (the "Consultant") and BOSTON CHICKEN, INC., a
Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, the Consultant has been serving as the Chief Executive
Officer and Co-Chairman of the Board of Directors (the "Board") of the Company,
and has tendered his resignation as an employee, officer and director of the
Company effective as of the date hereof.
WHEREAS, the Consultant desires to continue serving the Company as an
independent consultant; and
WHEREAS, the Company desires to retain the Consultant to serve as an
independent consultant to the Company upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, it is hereby agreed by the parties hereto as follows:
1. Retention and Duties of the Consultant. During the Term (as
defined in Section 2 below) the Company agrees to retain the Consultant, and
the Consultant agrees to be retained by the Company, to facilitate the
transition of the Office of Chairman and Chief Executive Officer of the Company
to J. Xxxxxxx Xxxxxxx, and to perform such other duties commensurate with the
Consultant's expertise and experience as the Chairman of the Board/CEO may
reasonably request. The Company agrees that the Consultant shall be permitted to
engage in other activities (including employment) during the Term, and
acknowledges that he likely will have a substantial commitment of time and
effort in connection with such other activities.
2. Term. The term of this Agreement (the "Term") shall commence as
of the date hereof and continue through December 31, 1998, unless earlier
terminated as set forth below.
3. Consulting Fees and Benefits.
3.1 Consulting Fees. For all services to be rendered by the
Consultant hereunder, the Company agrees to pay the Consultant consulting fees
equal to $400,000 per annum during the Term, payable in equal bi-weekly
installments throughout the Term.
3.2 Outstanding Options. The Company confirms that the Stock Option
Committee of the Board has taken all necessary action so that all stock options
awarded to the Consultant under the Company's stock option plans or otherwise to
purchase shares of the Company's Common Stock shall continue to vest as provided
in Exhibit A attached
hereto, regardless of the status of the Consultant's relationship with the
Company. Further, all stock options awarded to the Consultant will remain
outstanding and exercisable by the Consultant until January 19, 2003, and the
terms and conditions of each such stock option are hereby modified to the extent
necessary to provide therefor.
3.3 Medical, Life, and Dental Benefits. During the Term, the Company
shall, at its option, either cause the Consultant to maintain his currently
existing medical, life insurance and dental benefits under the applicable plans
of the Company on the same terms and conditions (including, without limitation,
any provisions concerning payment of premiums, deductibles, and co-payments)
that apply to senior officers of the Company, or shall reimburse the Consultant
in an amount equal to $575.00 per month for the cost of obtaining comparable
coverage.
3.4 Office and Support. The Consultant shall be provided with an
office and secretarial support at the Company's principal offices in Golden,
Colorado during the Term.
4. Reimbursement of Business Expenses. The Company shall reimburse
the Consultant for reasonable, out-of-pocket, direct expenses incurred in
connection with the Consultant's services for the Company rendered pursuant to
this Agreement, promptly upon presentation by the Consultant of appropriate
vouchers to the Company, and in accordance with the Company's reimbursement
policies. The expenses contemplated herein include, but are not limited to,
lodging, first-class airfare, and similar direct expenses incurred in
furtherance of the Company's business. In addition, the Company shall reimburse
the Consultant for reasonable attorneys' fees incurred in connection with the
negotiation of this Agreement, any challenge by any party to this Agreement,
and/or any act necessary to enforce this Agreement. Such attorneys' fees shall
be reimbursed promptly upon request by the Consultant.
5. PFCI Note. The Company agrees to prepay in full all amounts then-
owing pursuant to the Promissory Note (the "PFCI Note") delivered by the
Company to the Consultant dated August 27, 1997 and modified on November 7, 1997
in the principal amount of $1,590,740 within ten business days after the Company
receives one or more infusions of capital aggregating $70,000,000. Except as
provided in the preceding sentence, all other terms of the PFCI Note shall
remain in full force and effect.
6. Termination.
6.1 Consultant Option. The Consultant shall have the option to
terminate the Term at any time by written notice of termination given to the
Company at least 60 days in advance of the termination date stated in such
notice.
6.2 Company Option. The Company shall have the option to terminate
the Term, effective upon notice of such termination to the Consultant, in the
event of the willful refusal to perform or substantial neglect of the duties
assigned to the Consultant pursuant to Section 1 hereof.
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7. Indemnification.
7.1 Indemnification. In the event the Consultant is or has been made
a party or is or has been threatened to be made a party to or is involved in any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (hereinafter a "Proceeding"), by reason of the fact that he is or
was a director, officer, or employee of, or consultant to, the Company, or is or
was a director, officer, or employee of, or consultant to, the Company and is or
was serving at the request of the Company as a director, officer, or employee of
another corporation or of a partnership, limited liability company, joint
venture, trust, or other enterprise, including service with respect to employee
benefit plans, whether the basis of such Proceeding is alleged action or
inaction in an official capacity as such a director, officer, employee,
consultant, or in any other capacity while serving as such a director, officer,
employee, or consultant, he shall be indemnified and held harmless by the
Company to the fullest extent authorized by applicable law as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights then said law permitted the Company to provide prior to
such amendment), against all expense, liability, and loss (including, without
limitation, attorneys' fees for counsel selected by the Consultant, judgments,
fines, ERISA excise taxes or penalties, and amounts paid or to be paid in
settlement) reasonably incurred or suffered by the Consultant in connection
therewith, and such right to indemnification shall continue after the Term and
shall inure to the benefit of the Consultant's heirs, executors, and
administrators. The right to indemnification conferred hereunder shall include
the right to be paid by the Company the expenses incurred in defending any such
Proceeding in advance of its final disposition; provided, however, that if
applicable law requires, the payment of such expenses incurred by the Consultant
in his capacity as a director or officer (and not in any other capacity in which
service was or is rendered by the Consultant while a director or officer,
including, without limitation, service to an employee benefit plan), in advance
of the final disposition of a Proceeding shall be made only upon delivery to the
Company of an undertaking, by or on behalf of the Consultant, to repay all
amounts so advanced if it shall ultimately be determined that the Consultant is
not entitled to be indemnified under this Section or otherwise. The Company
agrees to notify the Consultant promptly upon learning of any Proceeding to
which the Consultant has been made a party or is or has been threatened to be
made a party or is involved.
7.2 Nonexclusive Rights. The right to indemnification and the payment
of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section 7 shall not be exclusive of any other
right which the Consultant may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation of the Company, Bylaw, agreement,
vote of stockholders or disinterested directors of the Company, or otherwise
including, without limitation, the Letter Agreement between the Company and the
Consultant dated January 19, 1998.
8. Access to Property, Records, and Employees. During the Term and
thereafter, upon reasonable prior notice and as requested by the Consultant, the
Company will afford to the Consultant such cooperation of the officers,
directors, employees, and consultants of the Company as is reasonably necessary
or desirable to enable the
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Consultant to perform the services to be provided hereunder and to investigate
or defend any Proceeding to which the Consultant has been or may be made a party
as a result of services provided as an officer, director, employee, or
consultant to the Company prior to, during, or after the Term.
9. Survival. The provisions of Sections 3-5 and 7-17, shall survive the
termination of this Agreement and remain enforceable according to their terms.
10. Severability. The invalidity or unenforceability of any provision of
this Agreement shall in no way affect the validity or enforceability of any
other provisions hereof.
11. Notices. All notices, demands, and requests required or permitted to
be given under the provisions of this Agreement, shall be deemed duly given if
made in writing and delivered personally or mailed by postage prepaid, certified
or registered mail, return receipt requested, accompanied by a second copy sent
by ordinary mail, which notices shall be addressed as follows:
If to the Consultant: Xxxx X. Xxxxxx
0000 Xxxxx Xx.
Xxxxxxxx Xxxx, XX 00000
If to the Company: Boston Chicken, Inc.
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: General Counsel
By notifying the other party in writing, given as aforesaid, either party may
from time to time change his or its address or the name of any person to whose
attention notice is to be given, or may add another person to whose attention
notice is to be given, in connection with notice to such party.
12. Assignment and Successors. Neither this Agreement nor any of its
rights or duties hereunder may be assigned or delegated by the Consultant. This
Agreement may not be assigned by the Company without the consent of the
Consultant, except to any successor in interest which takes over all or
substantially all of the business of the Company as it is conducted at the time
of such assignment. Any corporation into or with which the Company is merged or
consolidated or which takes over all or substantially all of the business of the
Company shall be deemed to be a successor of the Company for purposes herein.
This Agreement shall be binding upon and, except as aforesaid, shall inure to
the benefit of the parties and their respective successors and permitted
assigns.
13. Integration. This Agreement, along with the other documents referred
to herein, contains the entire agreement of the parties hereto with respect to
its subject matter and supersedes all previous agreements between the parties
hereto, written or oral, expresses or implied, covering the subject matter
hereof. No representations, inducements, promises, or agreements, oral or
otherwise, not embodied herein, shall be of any force or effect.
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14. No Waiver. No waiver or modification of any of the provisions of this
Agreement shall be valid unless in writing and signed by or on behalf of the
party granting such waiver or modification. No waiver by any party of any breach
or default hereunder shall be deemed a waiver of any repetition of such breach
or default or shall be deemed a waiver of any other breach or default, nor shall
it in any way affect any of the other terms or conditions of this Agreement or
the enforceability thereof. No failure of either party to exercise any power
given him or it hereunder or to insist upon strict compliance by the other party
with any obligation hereunder, and no custom or practice at variance with the
terms hereof, shall constitute a waiver of the right of either such party to
demand strict compliance with the terms hereof.
15. Amendment. This Agreement may not be supplemented or rescinded except
by instrument in writing signed by the parties hereto after the date hereof.
Neither this Agreement nor any of the rights of either of the parties hereunder
may be terminated except as provided herein.
16. Governing Law. This Agreement shall be governed by and construed, and
the rights and obligations of the parties hereto enforced, in accordance with
the laws of the State of Illinois, without regard to conflict of law principles.
17. Headings. Section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
BOSTON CHICKEN, INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Its: Sr. VP & General Counsel
/s/ XXXX X. XXXXXX
----------------------------------------
XXXX X. XXXXXX
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EXHIBIT A
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Xxxx Xxxxxx
0000 Xxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Boston Chicken, Inc. Employee Stock Option Plan Run Date 04/16/98
As of 04/16/98 Page No. 1
Date of Options Options Option Date of Available
Grant Type of Grant Granted Outstanding Price Expir. Options Vested For Exercise
------- ------------- --------- ----------- ------- -------- ------------------- ------------
01/30/92 308,572 308,572 $1.4586 01/30/02 308,572 (Current) 308,572
03/04/92 240,000 240,000 $1.4384 03/04/02 240,000 (Current) 240,000
01/15/93 112,500 112,500 $3.3336 01/15/03 112,500 (Current) 112,500
11/10/97 25,000 25,000 $8.9375 11/10/07 0 (Current) 0
25,000 on 11/10/98
11/10/97 30,252 30,252 $8.9375 11/10/07 0 (Current) 0
15,126 on 11/10/98
15,126 on 11/10/99
11/10/97 86,376 86,376 $8.9375 11/10/07 0 (Current) 0
28,772 on 11/10/98
28,772 on 11/10/99
28,772 on 11/10/00
01/19/98 350,000 350,000 $6.6230 01/19/08 0 (Current) 0
87,500 on 01/19/99
87,500 on 01/19/00
87,500 on 01/19/01
87,500 on 01/19/02
01/19/98 400,000 400,000 $6.6250 01/19/08 0 (Current) 0
400,000 on 10/01/98
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Shares 1,552,640 1,552,640 661,072
This summary supercedes any and all summaries previously delivered, is for
informational purposes only, and does not create any entitlement, ownership, or
other right to options or shares of Boston Chicken, Inc. regardless of whether
options or shares are listed above. Options may only be granted in accordance
with the Company's Employee Stock Option Plan, the Company's Stock Option Plan
for Non-Employee Directors, or action of the Company's Board of Directors or
other appropriate body are subject to the terms, vesting schedule, and
conditions of such plan or grant.