Exhibit 10.19
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "EMPLOYMENT AGREEMENT") is made this 12th
day of February, 2004 by and between VICORP RESTAURANTS, INC., a Colorado
corporation (the "COMPANY"), and XXXXXXX XXXXXXX ("EXECUTIVE").
WHEREAS, the Company and its subsidiaries are engaged in the business of
(i) operating and managing family dining restaurants and enterprises and (ii)
conducting such other activities as are undertaken from time to time by the
Company, VI Acquisition Corp., a Delaware corporation (the "PARENT"), and each
of their subsidiaries as a result of future acquisitions, or otherwise
(collectively, the "BUSINESS");
WHEREAS, the Company desires to employ Executive, and Executive desires to
be employed by the Company, as the Chief Financial Officer of the Company; and
WHEREAS, the Company and Executive desire to enter into this Employment
Agreement to evidence the terms and conditions of such employment.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises in this Employment Agreement, the parties agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive as Chief
Financial Officer of the Company, and Executive hereby agrees to accept such
employment and agrees to act as Chief Financial Officer of the Company, all in
accordance with the terms and conditions of this Employment Agreement. Executive
hereby represents and warrants that neither Executive's entry into this
Employment Agreement nor Executive's performance of Executive's obligations
hereunder will conflict with or result in a breach of the terms, conditions or
provisions of any other agreement or obligation of any nature to which Executive
is a party or by which Executive is bound, including, without limitation, any
development agreement, non-competition agreement or confidentiality agreement
entered into by Executive.
2. TERM OF EMPLOYMENT AND AUTOMATIC RENEWAL. The term of Executive's
employment under this Employment Agreement will commence on the date of this
Employment Agreement and will continue until the third (3rd) anniversary of the
date of this Employment Agreement (the "INITIAL EMPLOYMENT PERIOD"). THE INITIAL
EMPLOYMENT PERIOD AND ANY RENEWAL EMPLOYMENT PERIOD (AS DEFINED HEREIN) SHALL
AUTOMATICALLY BE RENEWED AND EXTENDED ON THE SAME TERMS AND CONDITIONS CONTAINED
HEREIN FOR CONSECUTIVE ONE-YEAR PERIODS (EACH, A "RENEWAL EMPLOYMENT PERIOD"),
UNLESS NOT LATER THAN SIXTY (60) DAYS PRIOR TO THE END OF THE INITIAL EMPLOYMENT
PERIOD OR ANY RENEWAL EMPLOYMENT PERIOD, AS THE CASE MAY BE, EITHER PARTY SHALL
GIVE WRITTEN NOTICE TO THE OTHER PARTY OF ITS ELECTION TO TERMINATE THIS
EMPLOYMENT AGREEMENT. The Initial Employment Period and the Renewal Employment
Periods are hereinafter referred to as the "EMPLOYMENT PERIOD." Notwithstanding
anything to the contrary contained herein, the Employment Period is subject to
earlier termination pursuant to SECTION 11 below.
3. POSITION AND RESPONSIBILITIES. Executive shall report to and be
subject to the direction of the Chief Executive Officer of the Company.
Executive shall perform and discharge such duties and responsibilities for the
Company as the Chief Executive Officer may from time to time reasonably assign
Executive. Executive understands and acknowledges that such duties shall be
subject to revision and modification by the Chief Executive Officer upon
reasonable notice to Executive. During the Employment Period, Executive shall
devote Executive's full business time, attention, skill and efforts to the
performance of Executive's duties herein, and shall perform the duties and carry
out the responsibilities assigned to Executive, to the best of Executive's
ability, in a diligent, trustworthy and businesslike manner for the purpose of
advancing the Company. Executive acknowledges that Executive's duties and
responsibilities will require Executive's full-time business efforts and agrees
that during the Employment Period, Executive will not engage in any outside
business activities that conflict with his obligations under this Employment
Agreement.
4. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Company shall
pay to Executive a base salary at the rate of $200,000 per year (the "BASE
SALARY"), less applicable tax withholding, payable at the Company's regular
employee payroll intervals. Executive's performance shall be reviewed annually
and the Base Salary may be increased at the Company's sole discretion.
(b) DISCRETIONARY BONUS. During the Employment Period, Executive
shall be eligible to earn an annual bonus targeted at forty percent (40%) of his
Base Salary upon the achievement of the annual budget and certain personal
goals, which budget and goals shall be determined by the Board in its sole
discretion.
(c) STOCK. Pursuant to that certain senior management agreement to
be entered into between Parent and the Executive (the "MANAGEMENT AGREEMENT"),
the Executive will purchase certain shares of common stock of Parent (the
"EXECUTIVE STOCK"), which shares of Executive Stock shall be subject to certain
vesting, repurchase and other obligations and restrictions set forth in the
Management Agreement, the Registration Rights Agreement and that certain
stockholders agreement entered into among Parent, Executive, the Investors (as
defined in a stock purchase agreement among Parent, Investors and certain
executives of the Company) and certain other shareholders of Parent (the
"STOCKHOLDERS AGREEMENT").
5. BENEFIT PLANS. During the Employment Period, Executive will be
entitled to receive the same employment benefits provided to other senior
executive officers of the Company (subject to any applicable waiting periods,
eligibility requirements, or other restrictions), which benefits may include
insurance (medical, dental, life, disability), retirement plans and profit
sharing plans.
6. EXPENSES. The Company, in accordance with policies and practices
established from time to time, will pay or reimburse Executive for all expenses
(including travel and cell phone expenses) reasonably incurred by Executive
during the Employment Period in connection with the performance of Executive's
duties under this Employment Agreement, provided that Executive shall provide to
the Company documentation or evidence of expenses for which Executive seeks
reimbursement. In addition, upon the delivery by Executive to the Company of
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a detailed description of such expenses, the Company agrees to reimburse
Executive for the following reasonable relocation expenses actually incurred in
connection with the Executive's relocation to the Denver, Colorado metropolitan
area:
(i) all transfer fees and broker fees incurred in connection
with the sale of Executive's current home;
(ii) reasonable moving expenses (including transportation of
automobiles to Colorado) for the belongings of Executive and his
family incurred in connection with the purchase of Executive's new
home in Colorado;
(iii) reasonable travel, lodging and dining expenses incurred
by Executive and his spouse in connection with two (2) house hunting
trips to Colorado; and
(iv) temporary housing in Colorado, if needed, up to a
maximum of three (3) months.
In addition to the foregoing, the Company shall pay the Executive a relocation
bonus of Five Thousand Dollars ($5,000.00) to cover any incidental relocation
expenses not otherwise covered herein, to be paid in a single sum on or about
the Executive's first day of employment.
7. VACATION. Executive shall be entitled to vacation at the rate of
four (4) weeks per year to be accrued and taken in accordance with the Company's
vacation policy from time to time in effect. Vacation which is accrued but not
used in a given year will be forfeited as of the end of that year.
8. CONFIDENTIALITY, INVENTIONS AND NON-SOLICITATION AGREEMENT. On the
date hereof, Executive shall execute a confidentiality, inventions and
non-solicitation agreement, in the form of EXHIBIT A attached hereto and made a
part hereof (the "CONFIDENTIALITY, INVENTIONS AND NON-SOLICITATION AGREEMENT").
9. RESTRICTIVE COVENANTS.
(a) EXECUTIVE'S ACKNOWLEDGMENT. Executive acknowledges that: (i)
Parent and the Company are and will be engaged in the Business during the
Employment Period and thereafter; (ii) Parent and the Company are and will be
actively engaged in the Business throughout the world; (iii) Executive is one of
a limited number of persons who will be developing the Business; (iv) Executive
will occupy a position of trust and confidence with the Company after the date
of this Employment Agreement and during the Employment Period Executive will
become familiar with Parent's and the Company's and each of their subsidiaries'
and portfolio companies (collectively, the "GROUP") trade secrets and with other
proprietary and confidential information concerning the Group and the Business
(and the other businesses of the Group); (v) the agreements and covenants
contained in this SECTION 9 are essential to protect the Group and the goodwill
of the Business and are a condition precedent to the Company entering into this
Employment Agreement; (vi) Executive's employment with the Company has special,
unique and extraordinary value to the Company and Parent and the Company would
be
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irreparably damaged if Executive were to provide services to any person or
entity in violation of the provisions of this Employment Agreement; and (vii)
Executive has means to support Executive and Executive's dependents other than
by engaging in the Business, and the provisions of this SECTION 9 will not
impair such ability.
(b) RESTRICTIONS. Executive will not, during the Restricted Period
(as defined below), anywhere in North America (the "RESTRICTED TERRITORY"),
directly or indirectly (whether as an owner, partner, shareholder, agent,
officer, director, employee, independent contractor, consultant, or otherwise)
own, operate, manage, control, invest in, perform services for, or engage or
participate in any manner in, or render services to (alone or in association
with any person or entity) or otherwise assist any person or entity in, the
following entities, or in any entity or entities directly or indirectly related
to the following entities: Xxx Xxxxx'; IHOP; Denny's; Perkin's; Xxxxx Calendar;
Mimi's; and Cracker Barrel.
The term "RESTRICTED PERIOD" means the period of time from the date of
this Employment Agreement until one (1) year after the termination for any
reason of Executive's employment relationship with the Group or any successor
thereto (whether pursuant to a written agreement or otherwise, including any
Renewal Employment Period under this Employment Agreement). The Restricted
Period shall be extended for a period equal to any time period that Executive is
in violation of SECTION 9. Nothing contained in SECTION 9(b) above shall be
construed to prevent Executive from investing in the stock of any competing
corporation listed on a national securities exchange or traded in the
over-the-counter market, but only if Executive is not involved in the business
of said corporation and if Executive and Executive's associates (as such term is
defined in Regulation 14(A) promulgated under the Securities Exchange Act of
1934, as in effect on the date hereof), collectively, do not own more than an
aggregate of one percent (1%) of the stock of such corporation.
(c) SCOPE/SEVERABILITY. The parties acknowledge that the business
of Parent and the Company is and will be national in scope and thus the
covenants in this SECTION 9 would be ineffective if the covenants were to be
limited to a particular geographic area. If any court of competent jurisdiction
at any time deems the Restricted Period unreasonably lengthy, or the Restricted
Territory unreasonably extensive, or any of the covenants set forth in this
SECTION 9 not fully enforceable, the other provisions of this SECTION 9, and
this Employment Agreement in general, will nevertheless stand and to the full
extent consistent with law continue in full force and effect, and it is the
intention and desire of the parties that the court treat any provisions of this
Employment Agreement which are not fully enforceable as having been modified to
the extent deemed necessary by the court to render them reasonable and
enforceable and that the court enforce them to such extent (for example, that
the Restricted Period be deemed to be the longest period permissible by law, but
not in excess of the length provided for in SECTION 9(B), and the Restricted
Territory be deemed to comprise the largest territory permissible by law under
the circumstances but not in excess of the territory provided for in SECTION
9(b)).
10. EQUITABLE REMEDIES. Executive acknowledges and agrees that the
agreements and covenants set forth in the Confidentiality, Inventions and
Non-Solicitation Agreement and in SECTION 9 of this Employment Agreement are
reasonable and necessary for the protection of Parent's and the Company's
business interests, that irreparable injury will result to Parent and the
Company if Executive breaches any of the terms of said covenants, and that in
the event of
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Executive's actual or threatened breach of any such covenants, Parent and the
Company will have no adequate remedy at law. Executive accordingly agrees that,
in the event of any actual or threatened breach by Executive of any of said
covenants, Parent and the Company will be entitled to immediate injunctive and
other equitable relief, without bond and without the necessity of showing actual
monetary damages. Nothing in this SECTION 10 will be construed as prohibiting
Parent or the Company from pursuing any other remedies available to them for
such breach or threatened breach, including the recovery of any damages that
they are able to prove.
11. TERMINATION. Notwithstanding anything in SECTION 2 of this
Employment Agreement to the contrary, Executive's services shall terminate upon
the first to occur of the following events:
(a) DEATH. The Employment Period will terminate immediately upon
the death of Executive. If the Employment Period is terminated pursuant to this
SECTION 11(a), the Company shall have no further obligation to Executive (or his
estate) except for Base Salary and benefits accrued through the date of
termination.
(b) DUE CAUSE. The Company may terminate the Employment Period
immediately upon written notice to Executive for Due Cause. The following events
will be deemed to constitute "DUE CAUSE":
(i) Executive's breach of any of Executive's obligations under the
Confidentiality, Inventions and Non-Solicitation Agreement,
this Employment Agreement, the Management Agreement, the
Registration Rights Agreement or the Stockholders Agreement;
or
(ii) Executive's neglect of, willful misconduct in connection with
the performance of, or refusal to perform Executive's duties
in accordance with SECTION 3 of this Employment Agreement,
which, in the case of neglect or refusal to perform, has not
been cured to the Company's good faith satisfaction within
thirty (30) days after Executive has been provided written
notice of the same and the corrective action required by the
Company; or
(iii) Executive's engagement in any conduct which injures the
integrity or reputation of the Company or which impugns
Executive's own integrity or reputation so as to cause
Executive to be unfit to act in the capacity of Chief
Financial Officer of the Company; or
(iv) the Executive's commission of an act or acts constituting a
felony, or any other act or acts involving dishonesty,
disloyalty or fraud against the Company.
If the Employment Period is terminated pursuant to this SECTION 11(b), the
Company shall have no further obligation to Executive except for Base Salary and
benefits accrued through the date of termination.
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(c) PERMANENT DISABILITY. The Company may terminate the Employment
Period upon the Permanent Disability (as defined below) of the Executive. For
purposes of this Employment Agreement, the term "PERMANENT DISABILITY" shall
mean that Executive is entitled to benefits under the Company's long-term
disability plan, or if no such plan exists, if the Executive is unable to
perform, by reason of physical or mental incapacity, the essential functions of
his position for ninety (90) or more days in any one hundred twenty (120) day
period. If the Employment Period is terminated pursuant to this SECTION 11(c),
the Company shall have no further obligations to Executive except for Base
Salary and benefits accrued through the date of termination.
(d) TERMINATION BY THE COMPANY WITHOUT DUE CAUSE. The Company may
terminate the Employment Period without Due Cause upon thirty (30) days' prior
written notice. If the Employment Period is terminated pursuant to this SECTION
11(d), then Executive will be entitled to receive as severance pay the
continuation of his Base Salary at the annual rate then in effect for a period
of one month for each month in which the Executive was employed by the Company
(up to a maximum of twelve (12) months) following the termination of his
employment (the "SEVERANCE PERIOD"), payable in accordance with the Company's
payroll policy from time to time in effect. Upon a termination under this
SECTION 11(d), the Company may elect, within thirty (30) days of the termination
of the Employment Period, to extend the duration of the Restricted Period for up
to an additional twelve (12) month period by so notifying Executive. If the
Company elects to extend the Restricted Period, the amount of severance pay
shall be increased by one-twelfth (1/12) of his Base Salary, at the annual rate
then in effect, for each month by which the Restricted Period is extended. In
addition, if the Executive elects COBRA continuation coverage, the Company shall
pay for such coverage through the Severance Period at the same rate as it pays
for health insurance coverage for its active employees (with the Executive
required to pay for any employee paid portion of such coverage). Nothing herein
provided, however, shall be construed to extend the period of time over which
such COBRA continuation coverage otherwise may be provided to the Executive
and/or her dependents. Notwithstanding the above, Executive shall receive such
amounts only if Executive is not in material breach of any of the provisions of
the Confidentiality, Inventions and Non-Solicitation Agreement and SECTION 9 of
this Employment Agreement and has complied with SECTION 11(f) of this Employment
Agreement.
(e) VOLUNTARY RESIGNATION BY EXECUTIVE. Executive may terminate
the Employment Period at any time for any reason upon thirty (30) days' prior
written notice. If the Employment Period is terminated pursuant to this SECTION
11(e), the Company shall have no further obligation to Executive except for Base
Salary and benefits accrued through the date of termination; provided, however,
that if Executive is terminating the Employment Period for Good Reason (as
defined below), then Executive will be entitled to receive the severance
benefits on the terms and subject to all of the conditions and rights as
described in SECTION 11(d). The following events will be deemed "GOOD REASON"
for which Executive may terminate the Employment Period and receive the
severance payments set forth in SECTION 11(d):
(i) a material diminution of the Executive's duties,
responsibilities, position or title after notice to the
Company and a thirty (30) day opportunity to cure; or
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(ii) any material breach of this Employment Agreement on the part
of the Company (including, but not limited to, any decrease in
the Base Salary without the consent of the Executive), after
notice to the Chief Executive Officer, and a thirty (30) day
opportunity to cure; provided, however, that Executive is not
in material breach of any of the terms of this Employment
Agreement.
(f) GENERAL RELEASE. The receipt of any payment as set forth in
SECTIONS 11(d)-(e) above shall be contingent upon Executive's execution of an
agreement acceptable to the Company that (i) waives any rights the Executive may
otherwise have against the Company and its Affiliates, (ii) releases the Company
and its Affiliates from actions, suits, claims, proceedings and demands related
to the period of employment and/or the termination of employment, and (iii)
contains certain other standard obligations which shall be set forth at the time
of the termination. For purposes of this Employment Agreement, the term
"AFFILIATES" means any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated association or other entity (other
than the Company) that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Company including, without limitation, any member of an affiliated group of
which the Company is a common parent corporation as provided in Section 1404 of
the Code.
(g) SURVIVAL. Termination of the Employment Period in accordance
with this SECTION 11, or expiration of the Employment Period, will not affect
the provisions of this Employment Agreement that survive such termination,
including, without limitation, the provisions in the Confidentiality, Inventions
and Non-Solicitation Agreement and in SECTION 9 of this Employment Agreement,
and will not limit either party's ability to pursue remedies at law or equity.
12. EXECUTIVE ASSISTANCE. Both during and after Executive's employment
with the Company, Executive shall, upon reasonable notice, furnish the Company
with such information as may be in Executive's possession or control, and
cooperate with the Company, as the Company may reasonably request (with due
consideration to Executive's business activities and obligations after the
Employment Period), in connection with any litigation, claim, or other dispute
in which the Company or any of its Affiliates is or may become a party. The
Company shall reimburse Executive for all reasonable out-of-pocket expenses
incurred by Executive in fulfilling Executive's obligations under this SECTION
12.
13. EFFECT OF PRIOR AGREEMENTS. This Employment Agreement, the
Management Agreement, the Stockholders Agreement, the Registration Rights
Agreement and the Confidentiality, Inventions and Non-Solicitation Agreement
contain the entire understanding among Parent, the Company and Executive
relating to the subject matter hereof and supersede any prior employment
agreement among Executive, Parent and the Company or other agreement relating to
the subject matter hereof between Parent, the Company and Executive. Executive
agrees and acknowledges that he is entitled to no benefits or compensation and
has no other rights against the Company, the Parent, and their Affiliates,
except as otherwise set forth in this Employment Agreement and, to the extent
any such benefits, compensation or rights are owed to him, expressly waives such
benefits, compensation and rights.
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14. MODIFICATION AND WAIVER. This Employment Agreement may not be
modified or amended, nor may any provisions of this Employment Agreement be
waived, except by an instrument in writing signed by the parties. No written
waiver will be deemed to be a continuing waiver unless specifically stated
therein, and each such waiver will operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or condition for
the future or as to any act other than that specifically waived.
15. SEVERABILITY. If, for any reason, any provision of this Employment
Agreement is held invalid, such invalidity will not affect any other provision
of this Employment Agreement, and each provision will to the full extent
consistent with law continue in full force and effect. If any provision of this
Employment Agreement is held invalid in part, such invalidity will in no way
affect the rest of such provision, and the rest of such provision, together with
all other provisions of this Employment Agreement, will, to the full extent
consistent with law, continue in full force and effect.
16. NOTICES. Any notice, consent, waiver and other communications
required or permitted pursuant to the provisions of this Employment Agreement
must be in writing and will be deemed to have been properly given (a) when
delivered by hand; (b) when sent by telecopier (with acknowledgment of complete
transmission), provided that a copy is mailed by U.S. certified mail, return
receipt requested; (c) three (3) days after sent by certified mail, return
receipt requested; or (d) one (1) day after deposit with a nationally recognized
overnight delivery service, in each case to the appropriate addresses and
telecopier numbers set forth below:
If to the Company:
VICORP Restaurants, Inc. VICORP Restaurants, Inc.
c/o Wind Point Partners 000 Xxxx 00xx Xxxxxx
Xxxxx 0000 Xxxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxxxx Xxxxxx Attn: Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxx, Ltd.
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to Executive:
Xxxxxxx Xxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
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Each party will be entitled to specify a different address for the receipt
of subsequent notices by giving written notice thereof to the other party in
accordance with this SECTION 16.
17. THIRD PARTY BENEFICIARIES. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person or entity,
other than the parties to this Employment Agreement and their respective
permitted successors and assigns, any rights or remedies under or by reason of
this Employment Agreement.
18. HEADINGS. The headings and other captions in this Employment
Agreement are included solely for convenience of reference and will not control
the meaning and interpretation of any provision of this Employment Agreement.
19. GOVERNING LAW; ARBITRATION. This Employment Agreement has been
executed in the State of Illinois, and its validity, interpretation,
performance, and enforcement will be governed by the laws of such state, except
with respect to conflicts of laws principles. Except for disputes arising out of
an alleged violation of the Restrictive Covenants set forth in the
Confidentiality, Inventions and Non-Solicitation Agreement and in SECTION 9 of
this Employment Agreement, any controversy or claim arising out of or relating
to any provision of this Employment Agreement or any other document or agreement
referred to herein shall be resolved by arbitration. The arbitration process
shall be instigated by either party giving written notice to the other of the
desire for arbitration and the factual allegations underlying the basis for the
dispute. The arbitration shall be conducted by such alternative dispute
resolution service as is agreed to by the parties, or, failing such agreement
within thirty (30) days after such dispute arises, by arbitrators selected as
described below in accordance with the rules and procedures established by the
American Arbitration Association. Only a person who is a practicing lawyer
admitted to a state bar may serve as an arbitrator. Each party shall select one
arbitrator, and those arbitrators shall choose a third arbitrator; these
arbitrators shall constitute the panel. The American Arbitration Association
rules for employment arbitration shall control any discovery conducted in
connection with the arbitration. The expenses of arbitration (other than
attorneys' fees) shall be shared as determined by arbitration. Each side to the
claim or controversy shall pay their own attorneys' fees. Any result reached by
the panel shall be binding on all parties to the arbitration, and no appeal may
be taken. It is agreed that any party to any award rendered in such arbitration
proceeding may seek a judgment upon the award and that judgment may be entered
thereon by any court having jurisdiction. The arbitration shall be conducted in
the State of Colorado.
20. NON-ASSIGNABILITY/BINDING EFFECT. The Executive acknowledges that
the services to be rendered by him are unique and personal. Accordingly, the
Executive may not assign any of her rights or delegate any of his duties or
obligations under this Agreement. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
21. NO STRICT CONSTRUCTION. The language used in this Employment
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rule of strict construction will be applied against
any person.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Company has caused this Employment Agreement to be
executed by its duly authorized officer and Executive has signed this Employment
Agreement, as of the date first above written.
VICORP RESTAURANTS, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Its: Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxx Xxxxxxx
---------------------------------------
XXXXXXX XXXXXXX
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EXHIBIT A
CONFIDENTIALITY, INVENTIONS AND NON-SOLICITATION AGREEMENT
In consideration of employment by VICORP Restaurants, Inc., a Colorado
corporation, its successors or assigns (the "COMPANY") of Xxxxxxx Xxxxxxx
("EXECUTIVE"), it is understood and agreed as follows:
1. CONFIDENTIAL INFORMATION.
(a) Executive acknowledges that the Confidential Information (as defined
below) constitutes a protectible business interest of the Company
and its parent VI Acquisition Corp., a Delaware corporation
("PARENT") and covenants and agrees that at all times during the
period of Executive's employment, and at all times after termination
of such employment, Executive will not, directly or indirectly,
disclose, furnish, make available or utilize any Confidential
Information other than in the course of performing duties as an
employee of the Company. Executive will abide by Company policies
and rules as may be established from time to time by it for the
protection of its Confidential Information. Executive agrees that in
the course of employment with the Company Executive will not bring
to the Company's offices nor use, disclose to the Company, or induce
the Company to use, any confidential information or documents
belonging to others. Executive's obligations under this SECTION 1.a.
with respect to particular Confidential Information will survive
expiration or termination of this Confidentiality, Inventions and
Non-Solicitation Agreement (this "AGREEMENT"), and Executive's
employment with the Company, and will terminate only at such time
(if any) as the Confidential Information in question becomes
generally known to the public other than through a breach of
Executive's obligations under this Agreement.
(b) As used in this Agreement, the term "CONFIDENTIAL INFORMATION" means
any and all confidential, proprietary or trade secret information,
whether disclosed, directly or indirectly, verbally, in writing or
by any other means in tangible or intangible form, including that
which is conceived or developed by Executive, applicable to or in
any way related to: (i) the present or future business of Parent,
the Company or any of their Affiliates (as defined below); (ii) the
research and development of Parent, the Company or any of their
Affiliates; or (iii) the business of any client or vendor of Parent,
the Company or any of their Affiliates. Such Confidential
Information includes the following property or information of
Parent, the Company and their Affiliates, by way of example and
without limitation: trade secrets, processes, formulas, data,
program documentation, customer lists, designs, drawings,
algorithms, source code, object code, know-how, improvements,
inventions, licenses, techniques, all plans or strategies for
marketing, development and pricing, business plans, financial
statements, profit margins and all information concerning existing
or potential clients, suppliers or vendors. Confidential Information
of Parent and the Company also means all similar information
disclosed to Parent or the Company by third parties which is
subject to confidentiality obligations. The term "AFFILIATES" means
(i) all persons or entities controlling, controlled by or under
common control with, Parent and/or the Company, (ii) all companies
or entities in which Parent or the Company own an equity interest
and (iii) all predecessors, successors and assigns of the those
Affiliates identified in (i) and (ii).
2. RETURN OF MATERIALS. Upon termination of employment with the Company, and
regardless of the reason for such termination, Executive will leave with, or
promptly return to, the Company all documents, records, notebooks, magnetic
tapes, disks or other materials, including all copies, in Executive's possession
or control which contain Confidential Information or any other information
concerning Parent, the Company, any of their Affiliates or any of their
respective products, services or clients, whether prepared by the Executive or
others.
3. INVENTIONS AS SOLE PROPERTY OF THE COMPANY.
(a) Executive covenants and agrees that all Inventions (as defined
below) shall be the sole and exclusive property of the Company.
(b) As used in this Agreement, the term "INVENTIONS" means any and all
inventions, developments, discoveries, improvements, works of
authorship, concepts or ideas, or expressions thereof, whether or
not subject to patents, copyright, trademark, trade secret
protection or other intellectual property right protection (in the
United States or elsewhere), and whether or not reduced to practice,
conceived or developed by Executive while employed with the Company
or within one (1) year following termination of such employment
which relate to or result from the actual or anticipated business,
work, research or investigation of Parent, the Company or any of
their Affiliates or which are suggested by or result from any task
assigned to or performed by Executive for Parent, the Company or any
of their Affiliates.
(c) Executive acknowledges that all original works of authorship which
are made by her (solely or jointly) are works made for hire under
the United States Copyright Act (17 U.S.C., et seq.).
(d) Executive agrees to promptly disclose to the Company all Inventions,
all original works of authorship and all work product relating
thereto. This disclosure will include complete and accurate copies
of all source code, object code or machine-readable copies,
documentation, work notes, flow-charts, diagrams, test data,
reports, samples and other tangible evidence or results
(collectively, "TANGIBLE EMBODIMENTS") of such Inventions, works of
authorship and work product. All Tangible Embodiments of any
Invention, work of authorship or work product related thereto will
be deemed to have been assigned to the Company as a result of the
act of expressing any Invention or work of authorship therein.
(e) Executive hereby assigns to the Company (together with the right to
prosecute or xxx for infringements or other violations of the same)
the entire worldwide right, title and interest to any such
Inventions or works made for hire, and Executive
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agrees to perform, during and after employment, all acts deemed
necessary or desirable by the Company to permit and assist it, at
the Company's expense, in registering, recording, obtaining,
maintaining, defending, enforcing and assigning Inventions or works
made for hire in any and all countries. Executive hereby irrevocably
designates and appoints the Company and its duly authorized officers
and agents as Executive's agents and attorneys-in-fact to act for
and in Executive's behalf and instead of Executive, to execute and
file any documents and to do all other lawfully permitted acts to
further the above purposes with the same legal force and effect as
if executed by Executive; this designation and appointment
constitutes an irrevocable power of attorney and is coupled with an
interest.
(f) Without limiting the generality of any other provision of this
SECTION 3, Executive hereby authorizes the Company and each of its
Affiliates (and their respective successors) to make any desired
changes to any part of any Invention, to combine it with other
materials in any manner desired, and to withhold Executive's
identity in connection with any distribution or use thereof alone or
in combination with other materials.
(g) Pursuant to the Illinois Employee Patent Act, Public Act 83-493,
this Agreement does not apply to any invention for which no
equipment, supplies, facility or trade secret information of Parent
or the Company was used and which was developed entirely on
Executive's own time, unless (1) the invention relates (a) to the
business of Parent or the Company or (b) to Parent's or the
Company's actual demonstrably anticipated research or development;
or (2) the invention results from any work performed by Executive
for Parent or the Company.
(h) The obligations of Executive set forth in this SECTION 3 (including,
but not limited to, the assignment obligations) will continue beyond
the termination of Executive's employment with respect to Inventions
conceived or made by Executive alone or in concert with others
during Executive's employment with the Company and during the one
(1) year thereafter, whether pursuant to this Agreement or
otherwise. These obligations will be binding upon Executive and
Executive's executors, administrators and other representatives.
4. LIST OF PRIOR INVENTIONS. All Inventions which Executive has made prior to
employment by the Company are excluded from the scope of this Agreement.
As a matter of record, Executive has set forth on ANNEX I hereto a
complete list of those Inventions which might relate to Parent's or the
Company's business and which have been made by Executive prior to
employment with the Company. Executive represents that such list is
complete. If no list is attached, Executive represents that there are no
prior Inventions.
5. NON-SOLICITATION.
(a) Executive will not, during the term of Executive's employment with
the Company and for two (2) years thereafter (the "RESTRICTED
PERIOD") (whether as an owner,
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partner, shareholder, agent, officer, director, employee,
independent contractor, consultant, or otherwise) with or through
any individual or entity:
i. employ, engage or explicitly solicit for
employment any individual who is, or was at any time during
the twelve-month period immediately prior to the termination
of Executive's employment with the Company for any reason, an
employee of Parent, the Company or any of their Affiliates or
otherwise seek to adversely influence or alter such
individual's relationship with Parent, the Company or any of
their Affiliates; or
ii. explicitly solicit or encourage any individual or
entity that is, or was during the twelve-month period
immediately prior to the termination of Executive's employment
with the Company for any reason, a customer or vendor of
Parent or the Company to terminate or otherwise alter his, her
or its relationship with Parent or the Company.
(b) The Restricted Period shall be extended for a period equal to any
time period that Executive is in violation of this SECTION 5.
6. EQUITABLE REMEDIES. Executive acknowledges and agrees that the agreements
and covenants set forth in this Agreement are reasonable and necessary for
the protection of Parent's and the Company's business interests, that
irreparable injury will result to Parent and the Company if Executive
breaches any of the terms of said covenants, and that in the event of
Executive's actual or threatened breach of any such covenants, Parent and
the Company will have no adequate remedy at law. Executive accordingly
agrees that, in the event of any actual or threatened breach by Executive
of any of said covenants, Parent and the Company will be entitled to
immediate injunctive and other equitable relief, without posting bond or
other security and without the necessity of showing actual monetary
damages. Nothing in this SECTION 6 will be construed as prohibiting Parent
or the Company from pursuing any other remedies available to them for such
breach or threatened breach, including the recovery of any damages that
they are able to prove.
7. NO RIGHT TO EMPLOYMENT. No provision of this Agreement shall give
Executive any right to continue in the employ of the Company or any of its
Affiliates, create any inference as to the length of employment of
Executive, affect the right of the Company or its Affiliates to terminate
the employment of Executive, with or without cause, or give Executive any
right to participate in any Executive welfare or benefit plan or other
program of the Company or any of its Affiliates.
8. MODIFICATION AND WAIVER. This Agreement may not be modified or amended
except by an instrument in writing signed by the parties. No term or
condition of this Agreement will be deemed to have been waived, except by
written instrument of the party charged with such waiver. No such written
waiver will be deemed to be a continuing waiver unless specifically stated
therein, and each such waiver will operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically
waived.
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9. SEVERABILITY. Executive acknowledges that the agreements and covenants
contained in this Agreement are essential to protect Parent, the Company
and their goodwill. Each of the covenants in this Agreement will be
construed as independent of any other covenants or other provisions of
this Agreement. It is the intention and desire of the parties that the
court treat any provisions of this Agreement which are not fully
enforceable as having been modified to the extent deemed necessary by the
court to render them reasonable and enforceable and that the court enforce
them to such extent.
10. NOTICES. Any notice, consent, waiver and other communications required or
permitted pursuant to the provisions of this Agreement must be in writing
and will be deemed to have been properly given (a) when delivered by hand;
(b) when sent by telecopier (with acknowledgment of complete
transmission), provided that a copy is mailed by U.S. certified mail,
return receipt requested; (c) three (3) days after sent by certified mail,
return receipt requested; or (d) one (1) day after deposit with a
nationally recognized overnight delivery service, in each case to the
appropriate addresses and telecopier numbers set forth below:
If to the Company:
VICORP Restaurants, Inc. VICORP Restaurants, Inc.
c/o Wind Point Partners 000 Xxxx 00xx Xxxxxx
Xxxxx 0000 Xxxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxxxx Xxxxxx Attn: Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxx, Ltd.
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to Executive:
Xxxxxxx Xxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Each party will be entitled to specify a different address for the receipt
of subsequent notices by giving written notice thereof to the other party
in accordance with this SECTION 10.
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11. HEADINGS. The headings and other captions in this Agreement are included
solely for convenience of reference and will not control the meaning and
interpretation of any provision of this Agreement.
12. GOVERNING LAW. This Agreement has been executed in the State of Illinois,
and its validity, interpretation, performance, and enforcement will be
governed by the laws of such state, except with respect to conflicts of
laws principles.
13. BINDING EFFECT. This Agreement will be binding upon and inure to the
benefit of Executive, the Company, and their respective successors and
permitted assigns. The Company will be entitled to assign its rights and
duties under this Agreement provided that the Company will remain liable
to Executive should such assignee fail to perform its obligations under
this Agreement.
14. NO STRICT CONSTRUCTION. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any person.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and Executive has signed this Agreement, as of
the date written below.
EXECUTIVE:
Date: February 12, 2004 /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
XXXXXXX XXXXXXX
VICORP RESTAURANTS, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Its: Chief Executive Officer
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