LADOCS\2506196 1
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of June 21, 1999,
between CHICAGO PIZZA & BREWERY, INC., a California corporation (the "Company"),
and XXXXXX X. XXXXXXX ("Executive").
The Company wishes to employ Executive, and Executive wishes to accept such
employment, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto hereby agree as follows;
1. Employment. Executive is hereby employed as the President of the
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Company and Co-Chairman of the Board of Directors. Executive, along with the
Chief Executive Officers of the Company, shall have supervision and control
over, and responsibility for, the operations and affairs of the Company, and
shall have such other powers and duties as may be from time to time assigned to
him by the Board of Directors of the Company (the "Board"), and Executive hereby
accepts such employment, all subject to the terms and conditions herein
contained. Executive hereby agrees that during the period of his employment
hereunder he shall devote substantially all of his business time, attention and
skills to the business and affairs of the Company and its subsidiaries.
2. Place of Performance. In connection with his employment by the
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Company, Executive shall be officed at such location as is mutually agreed upon
by the Company and Executive.
3. Compensation.
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(a) Base Salary. The Company shall pay to Executive, and Executive
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shall accept, for all services which may be rendered by him pursuant to this
Agreement, a base salary ("Base Salary") as hereinafter set forth. The Base
Salary during the first year of the term of this Agreement shall be $145,000.
At the end of the first full year of this Agreement, the Base Salary shall be
increased by an amount equal to the Base Salary then in effect multiplied by a
fraction, the numerator of which shall be the difference between (i) the
Consumer Price Index (as hereinafter defined) as of the first anniversary of the
Effective Date (as hereinafter defined) and (ii) the Consumer Price Index as of
the Effective Date, and the denominator of which shall be the Consumer Price
Index as of the Effective Date; provided, that the "fraction" set forth in this
sentence shall never be zero or less. At the end of each succeeding full year
of this Agreement, the Base Salary shall be increased in a like manner.
Any increase in Base Salary or other compensation granted by the Company,
the Board or any committee thereof shall in no way limit or reduce any other
obligation of the Company hereunder and, once established at an increased
specified rate, Executive's Base Salary hereunder shall not thereafter be
reduced. Executive's salary shall be payable in accordance with the Company's
payroll practices as from time to time in effect.
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LADOCS\2506196 1
For purposes of this Agreement, the "Consumer Price Index" as of any
particular date means the Consumer Price Index for Urban Wage Earners and
Clerical Workers, Los Angeles/Anaheim/ Riverside SMSA, all items, in respect of
the month immediately preceding such particular date, published by the U.S.
Department of Labor, Bureau of Labor Statistics, or if such index is no longer
published, the U.S. Department of Labor's most comprehensive official index then
in use that most nearly corresponds to the index named above.
(b) Additional Cash Compensation. The Company shall pay Executive the
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following compensation in addition to Executive's Base Salary upon the Company's
attainment of one or more earnings or income levels (collectively, the
"Additional Cash Compensation"). This additional compensation shall be computed
on an annual basis at the close of the Company's fiscal year and paid to
Executive within ten days of completion of the annual audit, subject to
pro-ration for the partial year 1999 as provided below.
(i) Earnings. Commencing as of the fiscal year ending December 31,
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1999, the Company shall pay Executive a cash bonus if the Company realizes
certain earnings before interest, amortization, depreciation and income taxes
("EBITDA"). The cash bonus shall be based upon the following schedule:
Cumulative
EBITDA Attainment Cash Bonus
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$ 2,000,000 $ 25,000
$ 3,000,000 $ 35,000
$ 6,000,000 $ 80,000
$ 9,000,000 $150,000
(ii) Pre-Tax Income. Commencing as of the fiscal year ending December
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31, 1999, the Company shall pay Executive a cash bonus if the Company attains
certain pre-tax income levels. For purposes hereof, "pre-tax income" means
total pre-tax income amounts as determined by the Company's independent public
accountants in accordance with Generally Accepted Accounting Principles ("GAAP")
as consistently applied. The cash bonus shall be calculated based upon the
following performance schedule:
Cumulative
Pre-Tax Income Cash Bonus
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$ 2,880,000 $ 25,000
$ 5,760,000 $ 75,000
$ 11,520,000 $ 150,000
The foregoing schedule shall apply in respect of the fiscal year ending December
31, 1999. The pre-tax income attainment levels set forth in the schedule shall
be increased annually by 20 percent per annum for each subsequent year during
the term of this Agreement.
(iii) Pro-ration for 1999. The bonuses for the fiscal year 1999 shall
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be pro-rated for the number of days that the Executive was an employee of the
Company in 1999 ("Work Days") by multiplying the bonus otherwise payable by a
fraction, the numerator of which is the number of work days and the denominator
of which is 365, the result of which shall be the bonus payable to Executive in
respect of fiscal year 1999.
(iv) Separate Bonus Categories. Each of the two bonus categories set
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forth above shall be independent of each other and Executive may obtain cash
bonuses from one or more of the categories in the same fiscal year.
(c) Stock Options. On the date the Executive shall first become an
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employee of the Company the Executive shall receive options to purchase 400,000
shares of the Company's Common Stock at an exercise price equal to the market
closing price on the grant date or, if it is greater, at the Fair Market Value
determined under the terms of the Company's 1996 Stock Option Plan (the "Stock
Option Plan"). Such options shall consist of both Incentive Stock Options and
Nonqualified Stock Options granted pursuant to the terms and conditions of the
Stock Option Plan as authorized by the Stock Option Committee of the Board of
Directors. The number of shares subject to exercise as Incentive Stock Options
shall be the maximum number of whole shares that can be issued as Incentive
stock Options within the limits imposed by Code Section 422(d) based on initial
vesting (exercisability) of 25% of such Incentive Stock Option grant and an
additional 25% vesting on each of the next three anniversaries of the grant
date. The difference between 400,000 shares and the aggregate number of shares
that can be granted as Incentive Stock Options (as determined above) shall be
granted as Nonqualified Stock Options that are immediately vested and
exercisable. The Company agrees that it will take such steps and actions as are
required to authorize this option grant, to amend the Stock Option Plan to
increase the authorized shares and to amend the restriction on the maximum
number of shares that may be granted to any one employee in a calendar year.
Executive acknowledges that the grant of the stock options described herein is
contingent on shareholder approval of the above described amendments to the
Stock Option Plan within 12 months of the adoption of such amendments. All
existing Nonqualified Stock Options previously granted to Executive in his role
as a Director of the Company shall survive in their current form.
(d) Automobile. In order to facilitate travel by Executive in the
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performance of his duties hereunder, the Company shall furnish Executive, at no
expense to him, with an automobile owned or leased by the Company; provided,
that the total cost to the Company for lease/purchase payments shall not exceed
$1,000 per month. The manufacturer and type of such automobile shall be chosen
by the Company. The Company shall reimburse Executive for all expenses of
maintaining, insuring and operating such automobile upon the presentation of
appropriate vouchers and/or receipts (to the extent that the Company does not
pay such expenses directly). At the discretion of the Board, the Company may,
in lieu of furnishing Executive with an automobile owned or leased by the
Company and paying all maintenance, insurance and operation expenses in
connection therewith, reimburse Executive for all expenses he incurs in
maintaining, insuring and operating one automobile owned or leased by Executive
upon the presentation of appropriate vouchers and/or receipts (to the extent
that the Company does not pay such expenses directly).
(e) Life Insurance. During the term of his employment hereunder, the
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Company shall purchase and keep in effect life insurance in the amount of
$1,000,000 on the life of the Executive; provided, that the total cost to the
Company for such insurance shall not exceed $7,500 per annum. Such life
insurance will name as beneficiaries those individuals designated by the
Executive.
(f) Expenses. During the term of his employment hereunder, Executive
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shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by him in performing services hereunder, provided that Executive
properly accounts therefor in accordance with the Company's policy relating
thereto. Without limiting the generality of the foregoing, the parties agree
that any travel Executive undertakes in connection with the performance of his
duties hereunder shall be in business class or better, and the Company shall
reimburse Executive for such expenses.
(g) Benefit Plans. Executive shall be entitled to participate in or
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receive benefits under any employee benefit plan or arrangement currently
available, or made available by the Company in the future, to its executives
and/or key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plan or arrangement. If
Executive elects not to participate in any of the health plans sponsored by the
Company, then the Company shall reimburse Executive in an amount not to exceed
$1,000 per month for costs incurred by Executive in obtaining alternative health
care coverage for Executive and his family. The Company shall not make any
changes in any employee benefit plans or arrangements in effect on the date
hereof or during the term of this Agreement in which Executive participates
(including, without limitation, any pension and retirement plan, supplemental
pension and retirement plan, savings and profit sharing plan, stock ownership
plan, stock purchase plan, stock option plan, life insurance plan, medical
insurance plan, disability plan, dental plan, health-and-accident plan or
arrangement) which would adversely affect Executive's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable to all
executives of the Company and does not result in a proportionately greater
reduction in the rights of or benefits to Executive as compared with any other
executive of the Company. Any payments or benefits payable to Executive
hereunder in respect of any calendar year during which Executive is employed by
the Company for less than the entire such year shall, unless otherwise provided
in the applicable plan or arrangement, be prorated in accordance with the number
of calendar days in such calendar year during which he is so employed.
(h) Vacations, Holidays and Sick Leave. Executive shall be entitled to
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the number of paid holidays, personal days off, vacation days and sick leave
days in each calendar year as are determined by the Company from time to time
for its senior executive officers, but not less than four weeks in any calendar
year (prorated, in any calendar year during which Executive is employed under
this Agreement for less than the entire such year, in accordance with the number
of calendar days in such calendar year during which he is so employed).
Vacation may be taken in Executive's discretion, so long as it is not
inconsistent with the reasonable business needs of the Company. Executive shall
be entitled to accrue from year to year all vacation days not taken by him.
(i) Perquisites. Executive shall be entitled to continue to receive
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the perquisites and fringe benefits appertaining to the office of the President
of the Company in accordance with present practice and appropriate to the
industry.
(j) Key Man Life Insurance. If so elected by the Company at its sole
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option, Executive shall cooperate with the Company to secure, for the Company, a
key man life insurance policy on the life of Executive in the amount of
$2,000,000 to $5,000,000, to be paid to the Company upon Executive's death.
(k) Base Salary Not Effected by Other Benefits. None of the benefits
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to which Executive is entitled under any of the provisions of Sections 3(b) -
3(g) hereof shall in any manner reduce or be deemed to be in lieu of the Base
Salary payable to Executive pursuant to Section 3(a) hereof.
4. Term of Employment. The employment by the Company of Executive
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pursuant hereto shall commence as of the date hereof (the "Effective Date") and,
subject to the provisions of Section 5 hereof, shall terminate March 24, 2004
(the "Termination Date"). This Agreement shall automatically be extended for
additional one year terms beyond the Termination Date (the "Extended Termination
Date") or the then current Extended Termination Date unless at least 30 calendar
days prior to the Termination Date or the then current Extended Termination
Date, Executive or the Company shall have given notice that he or it does not
wish to extend this Agreement.
5. Premature Termination. Anything in this Agreement contained to the
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contrary notwithstanding:
(a) Death. Executive's employment hereunder shall terminate forthwith
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upon the death of Executive.
(b) Disability. Executive's employment hereunder shall terminate, at
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the option of the Company, in the event that the Board makes a good faith
determination that Executive suffers from Disability (as hereinafter defined) so
as to be unable to substantially perform his duties hereunder for an aggregate
of 180 calendar days during any period of 12 consecutive months. As used in
this Agreement, the term "Disability" shall mean the material inability, in the
opinion of three-fourths of the entire membership of the Board set forth in a
resolution giving the particulars thereof, of Executive to render his
agreed-upon services to the Company due to physical and/or mental infirmity,
which opinion is concurred in by a physician or psychiatrist selected by
Executive or his duly appointed representative or guardian and reasonably
acceptable to the Company.
(c) Termination for Cause. The Company may terminate Executive's
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employment hereunder for Cause. For purposes of this Agreement, the Company
shall have "Cause" to terminate Executive's employment hereunder upon (i) the
willful and continued failure by Executive to substantially perform his duties
hereunder (other than any such failure resulting from Executive's incapacity due
to physical or mental illness) after demand for substantial performance is
delivered by the Company specifically identifying the manner in which the
Company believes Executive has not substantially performed his duties, or (ii)
the Executive being convicted of a crime constituting a felony, or (iii) the
Executive intentionally committing acts or failing to act, either of which
involves willful malfeasance with the intent to maliciously harm the business of
the Company, or (iv) the willful violation by Executive of the provisions of
Section 8 hereof provided that such violation results in material injury to the
Company. No act, or failure to act, on Executive's part shall be considered
"willful" unless intentionally done, or intentionally omitted to be done, by him
not in good faith and without reasonable belief that his action or omission was
in the best interest of the Company. Notwithstanding the foregoing, Executive
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to Executive a copy of a resolution, duly adopted by
the affirmative vote of not less than a majority of the entire membership of the
Board at a meeting of the Board called and held for such purpose (after
reasonable notice to Executive and an opportunity for him, together with his
counsel, to be heard before the Board), finding that, in the good faith opinion
of the Board, Executive conducted, or failed to conduct, himself in a manner set
forth above in clause (i), (ii), (iii), or (iv) of this Section 5(c), and
specifying the particulars thereof in detail. Any dispute as to whether Cause
to dismiss Executive exists, shall be resolved by arbitration conducted in Los
Angeles, California in accordance with the rules of the American Arbitration
Association and by a single arbitrator reasonably acceptable to Executive and
the Company.
(d) Termination by Executive. Executive may terminate his employment
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hereunder (i) for Good Reason (as hereinafter defined) or (ii) if his physical
or mental health becomes impaired to an extent that makes the continued
performance of his duties hereunder hazardous to his physical or mental health
or his life, provided that Executive shall have furnished the Company with a
written statement from a physician or psychiatrist selected by Executive or his
duly appointed representative or guardian and reasonably acceptable to the
Company. Until Executive terminates his employment pursuant to clause (ii) of
this Section 5(d), he shall continue to receive his full Base Salary, payable at
the time such payments are due.
(e) "Good Reason" Defined. For purposes of this Agreement, "Good
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Reason" shall mean (i) any removal of Executive as, or any failure to re-elect
Executive as, President of the Company except in connection with termination of
Executive's employment for Disability or Cause pursuant to Sections 5(b) and
5(c) hereof; provided, however, that any removal of Executive as, or any failure
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to re-elect Executive as, President of the Company (except in connection with
termination of Executive's employment for Disability or Cause pursuant to
Sections 5(b) and 5(c) hereof) shall not diminish or reduce the Company's
obligations to Executive under this Agreement, or (ii) a reduction of ten
percent (10%) or more in Executive's then current Base Salary, or (iii) any
failure by the Company to comply with any of is obligations to Executive
hereunder, or (iv) within 120 days following the occurrence of a Change of
Control (as hereinafter defined), or (v) the failure of the Company to obtain
the assumption of the agreement to perform this Agreement by any successor to
the Company, as provided for in Section 9 hereof.
(f) "Change of Control" Defined. For purposes of this Agreement a
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"Change of Control" shall be deemed to have occurred if there shall be
consummated (i) any consolidation or merger of the Company in which the Company
is not the continuing or surviving corporation or pursuant to which shares of
the Company's common stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the
Company's Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger, or (ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the Company's assets (except a sale and simultaneous leaseback of the same
assets), or (iii) the Company's shareholders approve any plan or proposal for
the liquidation or dissolution of the Company, or (iv) any person (as such term
is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) ("Person"), other than an Excluded Person (as
hereinafter defined), shall become the beneficial owner (within the meaning of
Rule 13d-3 under the Exchange Act) of fifteen per cent (15%) or more of the
Company's outstanding Common Stock or (v) during any period of two (2)
consecutive years, individuals who at the beginning of such period constitute
the entire Board of Directors of the Company shall cease for any reason to
constitute a majority thereof unless the election, or the nomination for
election by the Company's shareholders, of each new director was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who were
directors at the beginning of the period. For purposes of this Agreement, an
"Excluded Person" shall be any Person who as of the Effective Date hereof owns
beneficially over 10% of the Common Stock of the Company (or would own
beneficially over 10% of the Common Stock of the Company if all warrants or
options held by such person were currently exercisable, unless such Person after
the date hereof acquires the beneficial ownership of an additional 2% of the
Common Stock of the Company (other than pursuant to options and warrants
outstanding on the date hereof) which was not approved by at least two-thirds
(2/3) of the directors then still in office who were directors as of the
Effective Date hereof. Provided, however, in recognition that the Company has
entered into a Stock Purchase Agreement (the "Agreement"), dated February 18,
1999, among the Company, ASSI, Inc., a Nevada corporation ("ASSI"), and Xxxxx
Xxxxxx, pursuant to which the Company has agreed to sell an aggregate of
1,250,000 shares of its Common Stock (the "Shares") to ASSI, the Executive
hereby acknowledges and agrees that ASSI shall be deemed to be an "Excluded
Person" as such term is defined in this Agreement and waives any and all rights
he may have to terminate the Agreement for "Good Cause" as defined herein which
may result from any "Change of Control" caused by the issuance of the Shares to
ASSI or the issuance or purchase of any future additional securities by ASSI or
its affiliates or any changes in the Board related thereto.
(g) Notice of Termination. Any termination of Executive's employment
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by the Company or by Executive (other than termination pursuant to Section 5(a)
hereof) shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice Of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(h) Date of Termination. For purposes of this Agreement, "Date of
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Termination" shall mean (i) if Executive's employment is terminated by his
death, the date of his death, (ii) if Executive's employment is terminated
pursuant to Section 5(b) hereof, 30 calendar days after Notice of Termination is
given (provided that Executive shall not have returned to the performance of his
duties on a full-time basis during such 30-day period), and (iii) if Executive's
employment is terminated for any other reason, the date on which a Notice of
Termination is given.
6. Payments and Benefits Upon Early Termination.
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(a) Early Termination for Death or Disability. Upon the termination of
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this Agreement prior to the Termination Date (or, if this Agreement shall have
been extended to the Extended Termination Date, as provided in Section 4 hereof,
prior to the Extended Termination Date) (X) by the Company as a result of death
or Disability or (Y) by Executive for any of the reasons set forth in clause
(ii) of Section 5(d) hereof, the Company shall pay Executive:
(i) his Base Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given, payable at the time such
payments are due;
(ii) any and all Additional Cash Compensation which would have been
earned by Executive during the year of the Date of termination pro rated in
accordance with the number of calendar days during which Executive is employed
in such calendar year; and
(iii) all other amounts to which Executive is entitled, including,
without limitation, expense reimbursement amounts or amounts due under any
benefit plan of the Company accrued to the Date of Termination, at the time such
payments are due.
(b) Early Termination Other than for Death or Disability. Upon the
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termination of this Agreement prior to the Termination Date (or, if this
Agreement shall have been extended to the Extended Termination Date, as provided
in Section 4 hereof, prior to the Extended Termination Date) (X) by the Company
other than for death or Disability or Cause or (Y) by Executive for Good Reason,
the Company shall pay to Executive:
(i) his Base Salary through the Termination Date at the rate in effect
at the time Notice of Termination is given, payable at the time such payments
are due (or, if this Agreement shall have been extended to the Extended
Termination Date, as provided in Section 4 hereof, his Base Salary through the
Extended Termination Date at the rate in effect at the time Notice of
Termination is given, payable at the time such payments are due);
(ii) any and all Additional Cash Compensation which Executive would
have received each year through the Termination Date or Extended Termination
Date if the Agreement has been extended pursuant to Section 4 hereof, had
Executive not been terminated. Such Additional Cash Compensation shall be
payable at the time such payments would have been due; and
(iii) all other amounts to which Executive is entitled, including,
without limitation, expense reimbursement amounts or amounts due under any
benefit plan of the Company accrued to the Date of Termination, at the time such
payments are due.
In addition, for the 36-month period after termination for any of the
reasons specified in this Section 6(b), the Company shall arrange to provide
Executive with life and health insurance benefits substantially similar to those
which Executive was receiving immediately prior to the Notice of Termination.
(c) Payment of Damages. Upon the early termination of this Agreement
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pursuant to Section 6(b) hereof, the Company shall pay all other damages to
which Executive may be entitled as a result of the Company's termination of his
employment under this Agreement, including damages for any and all loss of
benefits to Executive under the Company's employee benefit plans which he would
have received if the Company had not breached this Agreement and had his
employment continued for the full term provided in Section 4 hereof, and
including all legal fees and expenses incurred by him in contesting or disputing
any such termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement.
(d) Mitigation Not Required. Executive shall not be required to
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mitigate the amount of any payment provided for in this Section 6 by seeking
other employment or otherwise. However, the amount of any payment provided for
in this Section 6 shall be reduced by any compensation earned by Executive as
the result of employment by another employer engaged in the restaurant business
after the Date of Termination, or otherwise.
7. Registration Rights.
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(a) At the request of Executive made at any time subsequent to a Date
of Termination pursuant to Sections 5(b) or 5 (d) hereof, the Company, on not
more than two occasions, will, as promptly as practicable (and in any event no
later than 120 days following the Executive's request): (i) prepare and file
under the Securities Act of 1933, as amended ("Securities Act"), using its
year-end financial statements for the preceding year, a registration statement
relating to all of the common stock of the Company held by or issuable to
Executive pursuant to any option or other agreement between the Company and
Executive (collectively, the "Registrable Securities"); and (ii) prepare and
file with the appropriate Blue Sky authorities the necessary documents to
register or qualify such Registrable Securities. Notwithstanding the foregoing,
Executive shall not be entitled to exercise his rights under this Section 7(a)
for a period of one year following the initial public offering of common stock
of the Company without the consent of the lead underwriter in the initial pubic
offering.
(b) As a condition for the inclusion of any Registrable Securities in
any registration statement pursuant to this Paragraph 7, at the request of the
Company, Executive shall enter into an underwriting agreement with the Company
and the underwriters with respect to the registration of the Registrable
Securities, in such form as may be reasonably agreed upon by the Company and
such underwriters, as long as such agreement is consistent with those then in
use by major underwriters and with the provisions hereof.
(c) The Company shall pay all registration expenses relating to any
registration of Registrable Securities pursuant to this Paragraph 7. Executive
shall pay all brokerage fees, underwriting fees and discounts, transfer taxes,
if any, and the fees and expenses of Executive's legal counsel in connection
with the registration and sale of the Registrable Securities.
8. Nondisclosure.
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(a) Confidential Information. Executive shall not, to the detriment of
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the Company, knowingly use for his own benefit or disclose or reveal to any
unauthorized person, any trade secret or other confidential information received
by Executive in the course of his employment or engagement in any capacity by
the Company which relates to the Company or to any of the businesses operated by
it, including, but not limited to, any customer lists, customer needs, price and
performance information, specifications, hardware, software, devices, supply
sources and characteristics, business opportunities, marketing, promotional,
pricing and financing techniques, or other information relating to the business
of the Company, and Executive confirms that such information constitutes the
exclusive property of the Company. However, said restriction on confidential
information shall not apply to information which is: (i) generally available in
the industry in which the Company operates, (ii) disclosed in published
literature or (iii) obtained by Executive from a third party without binder or
secrecy. Executive agrees that, except as otherwise expressly agreed to by the
Company, he will return to the Company, promptly upon the request of the Board
or any executive officer designated by the Board, any physical embodiment of
such confidential information.
(b) Remedies. Executive recognizes that the possible restrictions on
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his activities which may occur as a result of his performance of his obligations
under this Section 8 are required for the reasonable protection of the Company
and its investments, and Executive expressly acknowledges that damages alone
will be an inadequate remedy for any breach or violation of this Section 8, and
that the Company, in addition to all other remedies at law or in equity, shall
be entitled, as a matter of right, to injunctive relief, including specific
performance, with respect to any such breach or violation, in any court of
competent jurisdiction.
(c) Nonexclusivity. The undertakings of Executive contained in
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Sections 8(a) and 8(b) hereof shall be in addition to, and not in lieu of, any
obligations which he may have with respect to the subject matter hereof, whether
by contract, as a matter of law or otherwise.
9. Successors; Benefits.
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(a) Successors. The Company shall require any successor (whether
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direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to Executive, 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 agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
9 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) Benefits. This Agreement and all rights of Executive hereunder
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shall inure to the benefit of and be enforceable by Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Executive should die while any amounts
would still be payable to him hereunder if he had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to Executive's devisee, legatee, or other designee or,
if there be no such designee, to Executive's estate.
10. Miscellaneous Provisions.
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(a) Execution in Counterparts. This Agreement may be executed in one
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or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
(b) Notices. Unless applicable law requires a different method of
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giving notice, any and all notices, demands or other communications required or
desired to be given hereunder by either party shall be in writing. Assuming
that the contents of a notice meet the requirements of the specific paragraph of
this Agreement which mandates the giving of that notice, a notice shall be
validly given or made to another party if served either personally or if
deposited in the United States mail, certified or registered, postage prepaid,
or if transmitted by telegraph, telecopy or other electronic written
transmission device or if sent by overnight courier service, and if addressed to
the applicable party as set forth below. If such notice, demand or other
communication is served personally, service shall be con-clusively deemed made
at the time of such personal service. If such notice, demand or other
communication is given by mail, ser-vice shall be conclusively deemed made
seventy-two (72) hours after the deposit thereof in the United States mail. If
such notice, demand or other communication is given by overnight courier, or
electronic transmission, service shall be conclu-sively deemed made at the time
of confirmation of delivery. The addresses for the parties are as follows:
If to the Company, to:
Chicago Pizza & Brewery, Inc.
00000 Xxxxxxxxxx Xxxxxxx
Xxxxx X
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
with a copy to: Jeffer, Mangels, Xxxxxx & Xxxxxxx
2121 Avenue of the Stars
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to Executive, to:
Xxxxxx X. Xxxxxxx
00 Xxxxxx Xxxxx
Xxxxxx Xxxxx Xxxxxx,
Xxxxxxxxxx 00000
or to such other address as either party hereto shall have designated by like
notice to the other party hereto (except that a notice of change of address
shall only be effective upon receipt).
(c) Amendment. This Agreement may only be amended by a written
---------
instrument executed by each of the parties hereto.
(d) Entire Agreement. This Agreement constitutes the entire agreement
-----------------
of the parties hereto with respect to the subject matter hereof, and supersedes
all prior agreements and understandings of the parties hereto, oral and written,
with respect to the subject matter hereof
(e) Applicable Law. This Agreement shall be governed by the laws of
---------------
the State of California applicable to contracts made and to be wholly performed
therein.
(f) Headings. The headings contained herein are for the sole purpose
--------
of convenience of reference and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
(g) No Waiver. The failure of either of the parties hereto to at any
----------
time enforce any of the provisions of this Agreement shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Agreement or any provision hereof or the right of either of the
parties hereto to thereafter enforce each and every provision of this Agreement.
No waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party against
whom or which enforcement of such waiver is sought; and no waiver of any such
breach shall be construed or deemed to be a waiver of any other or subsequent
breach.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
COMPANY:
CHICAGO PIZZA & BREWERY, INC.
By:_______________________________
Xxxx X. Xxxxxxx
Chief Executive Officer
EXECUTIVE:
__________________________________
Xxxxxx X. Xxxxxxx
