BJ’s Restaurants, Inc. Huntington Beach, CA 92647
Exhibit 10.1
BJ’s Restaurants, Inc.
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Dear ▇▇▇▇▇:
This letter outlines the terms of your employment (the “Agreement”) with BJ’s Restaurants, Inc. (the “Company”).
1. Effective Date of Employment. Your employment will begin on or about January 28, 2013 (the “Effective Date”). Your employment is contingent upon the results of a post-offer background investigation and your acceptance of these terms.
2. Duties. Company will employ you as Senior Vice President and Chief Information Officer. In this capacity, you will perform such duties as the Company, in the exercise of its sole discretion, deems appropriate for that position. Additionally, in this capacity, you also understand that you will be a “named executive officer” of the Company as defined by the regulations of the Securities and Exchange Commission and all other applicable laws and regulations. You will report to the Company’s Chief Financial Officer (CFO).
3. Employment Location: The principal location of your employment will be at the Company’s Restaurant Support Center in Huntington Beach, California. You also understand that it may be necessary for you to travel to the Company’s restaurant locations in order to perform certain of your duties.
4. Salary. You will receive a bi-weekly base salary of $9,038.46 which annualizes to an annual salary of $235,000.00 payable in accordance with the Company’s payroll policies, as such policies may change from time to time (the “Salary”). Your Salary is subject to modification during your employment in accordance with the Company’s practices, policies and procedures and your performance. All such modifications, if any, will be at the sole discretion of the Company.
5. Monthly Auto Allowance. You will also receive a monthly non-accountable automobile allowance of $1,000.00, less applicable withholdings. The allowance is intended to cover all costs of using your personal automobile for Company business purposes, including gasoline, mileage, insurance and so forth.
6. Reimbursement of Company Business Expenses: You will be reimbursed for expenses you incur that are directly related to the Company’s operations and business, pursuant to the provisions of the Company’s business expense reimbursement policy. A Company-provided business credit card, a cell phone and laptop will be issued to you for Company business purposes.
7. Annual Cash Bonus Opportunity. Your cash bonus opportunity under the Company’s Performance Incentive Plan (“PIP”) will be a maximum of 35% of your Salary, with such cash bonus opportunity to be calculated on the basis of the Company’s entire fiscal performance. Any cash bonus which you may receive under the PIP will be prorated to the Effective Date during the first year of your employment with the Company. Your cash bonus opportunity under the PIP will be driven by the degree of the Company’s achievement of its consolidated pre-tax income goal for 2013 (67%) and the degree of your timely achievement, as determined by the Chief Executive Officer (“CEO”) in his judgment (and as subsequently approved by the Compensation Committee of the Board of Directors), of certain key initiatives and personal objectives agreed upon by you and the CEO (33%). These percentage components and your eligibility for any such bonus in subsequent fiscal years are subject to change, in the sole discretion of the Company’s Board of Directors, provided that you are still employed by the Company in the capacity you are currently being employed or in any other capacity. Your annual cash bonus opportunity is at the sole discretion of the Company’s Board of Directors and is not earned until it is received. In the event of termination or resignation prior to receipt of any cash bonus, if any, you will not be entitled to, or be considered eligible to, receive any prorated cash bonus under the Company’s Performance Incentive Plan.
8. Termination With or Without Cause. Your employment is at will and may be terminated by you or the Company, at any time, with or without notice, and with or without cause.
If the Company terminates your employment without cause, on or after the Effective Date, you will be eligible to receive a severance payment of six (6) months of your annual Salary then in effect and, if you are not covered by any other comprehensive group medical insurance plan, the Company will also pay you an amount equivalent to your COBRA payments for a period of six (6) months. Any severance amounts paid will be based upon your then current annual base Salary at the time employment ends and will be paid in a lump sum, less applicable withholdings. The aforementioned severance payment is conditioned upon your agreement to release all claims, if any, you may have against the Company and/or any of its employees, officers, agents and representatives, insofar as permissible under the law. For the purpose of the severance payment provision in this Agreement only, “Cause” shall include, but is not limited to:
| (i) | failure by you to perform your duties expected by the Company, other than such failure resulting from your incapacity due to physical or mental illness, after there has been delivered to you a written demand for performance from the Company which demand identifies the basis for the Company’s belief that you have not performed your duties; |
| (ii) | dishonesty, incompetence or gross negligence in the discharge of your duties. |
| (iii) | theft, embezzlement, fraud, act or acts of dishonesty undertaken by you with the intent of resulting or actually resulting in personal gain or enrichment of you or others at the expense of the Company and/or your conviction of a felony; |
| (iv) | breach of confidentiality or unauthorized disclosure or use of inside information, recipes, processes, customer, vendor or employee lists, trade secrets or other proprietary information; |
| (v) | the violation of any law, rule, or regulation of any governmental authority or breach of the Company’s policies and procedures including, without limitation, the Company’s Code of Integrity, Ethics and Conduct and/or any of its anti-harassment and anti-discrimination policies; |
| (vi) | a material breach of the terms and conditions of this Agreement; |
| (vii) | conduct that is injurious to the reputation, business or assets of the Company. |
You will not be eligible for the severance payments or benefits set forth herein if you resign from your employment with the Company for any reason or voluntarily terminate your employment
9. Initial Equity Award. Subject to applicable securities laws and the approval of the Compensation Committee of the Company’s Board of Directors, you will be granted an initial equity award pursuant to the terms of the Company’s 2005 Equity Incentive Plan that will be valued for financial accounting purposes at $300,000. The grant date of this award is currently expected to be on the Effective Date. If the Effective Date falls within one of the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ “blackout” periods, then the award grant date will be the first trading day after such “blackout” period is lifted. You will have the choice, to be made prior to the Effective Date, of accepting this award in the form of either all non-qualified options (NQ options) to purchase the Company’s common stock, or in the form of an allocation of 50% of the value of the award to NQ options and the remaining 50% to restricted stock units (RSUs). The number of NQ option shares under the award will be determined using the “fair value” of a NQ option calculated using the Black-Scholes option pricing model on the grant date of the award. For example, if the “fair value” of a NQ option for the Company’s common stock is $15.00 on the grant date, and you choose all NQ options for your award, then you would be awarded options to purchase 20,000 shares of the Company’s common stock ($300,000 / $15.00). The actual “fair value” calculation on the grant date of your award may be higher or lower than this example. The number of RSU shares, if any, will be determined using the closing price of the Company’s common stock on the Nasdaq Global Market on the grant date of the award. Vesting for this award, regardless of whether it is NQ options or RSUs, will be 20% annually, beginning with the first anniversary of their grant date, over a total of five (5) years. You will also be eligible for additional grants of equity awards from time to time at the discretion of the Compensation Committee of the Board.
10. Other Benefits. You shall be entitled to participate in any benefit plan that the Company may offer to its employees from time to time, according to the eligibility requirements and terms of such plan, including, but not limited to, the Company’s group medical, dental and vision insurance program, which will become effective the first of the month following 30 days from your Effective Date. Nothing contained in this Agreement shall affect the right of Company to terminate or modify any such plan or agreement, or other benefit, in whole or in part, at any time and from time to time.
11. Paid Absences. The Company does not have a formal paid vacation or illness policy for its officers. Accordingly, officers are expected to use their reasonable judgment and professional discretion when requesting paid time off for any reason, in light of their current work schedules and the Company’s business and operational requirements. Paid absences must be reasonably requested in advance and approved by the CFO.
12. Trade Secrets/Confidentiality. You hereby acknowledge that, as a result of your position with the Company, the Company will give you access to the Company’s proprietary and confidential information and trade secrets. Therefore, as a condition of your employment and the Company’s disclosing such proprietary and confidential information to you, you agree to sign and be bound by a separate Trade Secrets/Confidentiality Agreement. You also hereby acknowledge that you will not disclose to the Company any confidential, proprietary and/or trade secret information you obtained while working for any prior employer.
13. Temporary Living. You understand that it is essential for the Company’s CIO position to be based full-time at the Company’s home office, excluding the normal business travel requirements of the CIO position. In order to partially help alleviate the distance from your current residence to the Company’s corporate headquarters, the Company will reimburse you for the cost of one hotel night per week, excluding normal business travel. Nothing contained in this Agreement shall affect the right of Company to terminate or modify any such plan or agreement, in whole or in part, at any time and from time to time.
14. Compliance with Company Policies and Procedures. You will be required to comply with the Company’s policies and procedures, as they may be constituted from time to time. Notwithstanding such policies and procedures, the terms set forth in this Agreement or any other written fully executed agreement between you and the Company shall prevail over conflicting Company policies and procedures.
15. Severability. If any provision contained in this Agreement is determined to be void, illegal or unenforceable, in whole or in part, then the other provisions contained herein shall remain in full force and effect as if the provision which was determined to be void, illegal, or unenforceable had not been contained herein.
16. Other Provisions. By signing this letter, you acknowledge that the terms described in this letter set forth the entire understanding between the parties concerning the terms of your employment and supersede all prior representations, understandings and agreements, either oral or in writing, between you and the Company with respect to the terms of your employment by the Company and all such prior representations, understandings and agreements, both oral and written, are hereby terminated. However, nothing in this paragraph is intended to, nor does it, affect additional written agreements entered into by the parties contemporaneous with or subsequent to this agreement, including, without limitation, the Trade Secrets/Confidentiality Agreement referenced herein. Nothing in this letter constitutes a guarantee of employment for any period of time, nor does it limit your right, or the right of the Company to end your employment with the Company at any time, for any reason. No term or provision of this letter may be amended, waived, released, discharged or modified except in writing, signed by you and an authorized officer of the Company.
17. Arbitration. As a condition of your employment, you agree to sign and be bound by a separate Arbitration Agreement. Any disputes or controversy arising under or in connection with this Agreement, including but not limited to whether any Cause to dismiss you exists under the provisions of paragraph 8 of this Agreement, shall be resolved by arbitration conducted in Orange County, California in accordance with the rules of the American Arbitration Association and by a single arbitrator reasonably acceptable to both you and the Company.
▇▇▇▇▇, we are excited to have you join our senior leadership team. Please acknowledge your acceptance of this offer of employment on the terms indicated by signing the enclosed copy of this letter and returning it to me as soon as possible.
Sincerely,
BJ’s Restaurants, Inc.
By: __________________________ Date: ________________
▇▇▇▇ ▇▇▇▇▇, EVP & Chief Financial Officer
I accept the above offer of employment with BJ’s Restaurants, Inc. on the terms and conditions described in this Agreement.
_____________________________ Date: ________________
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