EMPLOYMENT AGREEMENT
BY AND BETWEEN
WOODROAST SYSTEMS, INC., A MINNESOTA CORPORATION
AND
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DATED EFFECTIVE SEPTEMBER 5, 1996
EMPLOYMENT AGREEMENT
BY AND BETWEEN
WOODROAST SYSTEMS, INC., A MINNESOTA CORPORATION
AND
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DATED EFFECTIVE SEPTEMBER 5, 1996
TABLE OF CONTENTS
RECITALS ....................................................................1
AGREEMENTS...................................................................1
1. Employment and Duties...............................................1
2. Compensation. .....................................................2
(a) Base Salary. .............................................2
(b) Incentive Bonus Plan.......................................2
(c) Executive Perquisites, Benefits and Other Compensation.....2
3. Non-Competition Agreement...........................................3
4. Term; Termination; Rights on Termination............................5
(a) Death......................................................5
(b) Disability.................................................5
(c) Good Cause.................................................5
(d) Without Cause..............................................5
(e) Termination by Employee for Good Reason....................6
(f) Termination by Employee Without Cause......................6
5. Return of Company Property..........................................6
6. Inventions..........................................................7
7. Trade Secrets.......................................................7
8. Indemnification.....................................................7
9. No Prior Agreements.................................................8
10. Assignment; Binding Effect..........................................8
11. Complete Agreement..................................................8
12. Notice..............................................................8
13. Severability; Headings..............................................9
14. Arbitration.........................................................9
15. Governing Law.......................................................9
SIGNATURES...................................................................9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") by and between Woodroast
Systems, Inc., a Minnesota corporation (the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("Employee") is hereby entered into and effective as of September 5, 1996. This
Agreement hereby supersedes any other employment agreements or understandings;
written or oral, between the Company and Employee.
RECITALS:
The following statements are true and correct:
As of the date of this Agreement, the Company is engaged primarily in
the business of owning and operating restaurants and cigar parlors.
Employee is employed hereunder by the Company in a confidential
relationship wherein Employee, in the course of his employment with the Company,
has and will continue to become familiar with and aware of information as to the
Company's customers, specific manner of doing business, including the processes,
techniques and trade secrets utilized by the Company, and future plans with
respect thereto, all of which has been and will be established and maintained at
great expense to the Company; this information is a trade secret and constitutes
the valuable goodwill of the Company.
Therefore, in consideration of the mutual promises, terms covenants and
conditions set forth herein and the performance of each, it is hereby agreed as
follows:
AGREEMENTS:
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs Employee as President and Chief
Operating Officer effective November 1, 1996. As such, Employee shall
have responsibilities, duties and authority reasonably accorded to and
expected of a President and Chief Operating Officer and will report
directly to the Chief Executive Officer of the Company. Employee hereby
accepts this employment upon the terms and conditions herein contained
and, subject to paragraph 1(b), agrees to devote his working time,
attention and efforts to promote and further the business of the
Company.
(b) Employee shall not, during the term of his employment
hereunder, be engaged in any other business activity pursued for gain,
profit or other pecuniary advantage; provided however, the foregoing
limitation shall not be construed as prohibiting Employee from making
personal investments in such form or manner as will not require his
services in the operation or affairs of the companies or enterprises in
which such investments are made nor violate the terms of paragraph 3
hereof.
2. COMPENSATION. For all services rendered by Employee, the Company
shall compensate Employee as follows:
(a) BASE SALARY. The base salary payable to Employee shall be
One Hundred Seventy-Five Thousand Dollars ($175,000) per year, payable
on a regular basis in accordance with the Company's standard payroll
procedures but not less than twice monthly. On at least an annual
basis, the Board of Directors of the Company (the "Board") will review
Employee's performance and may make increases to such base salary if,
in its discretion, any such increase is warranted. Such recommended
increase would, in all likelihood, require approval by the Board or a
duly constituted committee thereof.
(b) INCENTIVE BONUS PLAN. For 1997 and subsequent years.
Employee shall be eligible for a bonus opportunity of up to 20% of his
base salary to be awarded at the discretion of the Chief Executive
Officer and based upon such criteria as may from time to time be
determined by the Chief Executive Officer.
(c) EXECUTIVE PERQUISITES, BENEFITS AND OTHER COMPENSATION.
Employee shall be entitled to receive additional benefits and
compensation from the Company in such form and to such extent as
specified below:
(i) Payment of premiums for coverage for Employee and
his spouse and children under health, hospitalization,
disability, life and other employee benefit plans that the
Company may have in effect from time to time, with benefits
provided to Employee under this clause (i) to be not less
favorable than the benefits provided to other Company
executives including the Chief Executive Officer.
(ii) Reimbursement for all business travel and other
out-of-pocket expenses reasonably incurred by Employee in the
performance of his services pursuant to this Agreement. All
reimbursable expenses shall be appropriately documented in
reasonable detail by Employee upon submission of any request
for reimbursement, and in a format and manner consistent with
the Company's expense reporting policy.
(iii) Two (2) weeks paid vacation for each year
during the period of employment (pro rated for any year in
which Employee is employed for less than the full year) until
October 31, 1999 and three (3) weeks paid vacation for each
year during the period of employment (pro rated for any year
in which Employee is employed for less than the full year)
after November 1, 1999. Earned and unused paid vacation for
each year shall not carry forward to subsequent years.
(iv) The Company shall provide Employee with other
executive perquisites as may be available to or deemed
appropriate for Employee by the Board and participation in all
other Company-wide employee benefits as available from time to
time.
(v) The Company shall grant the Employee options (the
"Options") to acquire one hundred fifty thousand (150,000)
shares of the Common Stock of the Company at the price of Four
and 375/1000s Dollars ($4.375) per share (the "Option Price").
The Options shall become exercisable as to twenty percent
(20%) of the underlying shares of Common Stock on May 1, 1997
and as to the remainder, twenty percent (20%) of the
underlying shares of Common Stock on each of the first four
anniversaries of May 1, 1997 (May 1, 1998, May 1, 1999, May 1,
2000, May 1, 2001). The Options shall expire on the tenth
anniversary of the date of grant.
(vi) The Company shall pay Employee's (A) direct and
out-of-pocket relocation expenses to the Minneapolis/St. ▇▇▇▇,
Minnesota metropolitan area; (B) travel expenses for up to
three (3) round-trips between Employee's current residence and
Minneapolis, Minnesota; and (C) rent for temporary lodging not
to exceed Two Thousand Five Hundred Dollars ($2,500) per month
for a period not to exceed one (1) year. Direct and
out-of-pocket relocation expenses include packing, moving and
unpacking of household goods, furniture and automobiles but do
not include temporary lodging or living costs, duplicate home
carrying costs, residential purchase closing costs or travel
costs except as set forth in clauses (B) and (C) of this
subsection 2(c)(vi). The foregoing shall be paid or reimbursed
by the Company if, when and as incurred.
3. NON-COMPETITION AGREEMENT.
(a) Employee will not, during the period of his employment by
or with the Company, and for a period of one (1) year immediately
following the termination of his employment under this Agreement, for
any reason whatsoever, directly or indirectly, for himself or on behalf
of or in conjunction with any other person, persons, company,
partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder,
owner, partner, joint venturer, or in a managerial capacity,
whether as an employee, independent contractor, consultant or
advisor, or as a sales representative, in any business selling
any products or services in direct competition with the
Company's Shelly's Back Room(R) cigar parlor restaurant
concept (the "Parlor"), within the United States (the
"Territory");
(ii) call upon any person who is, at that time,
within the Territory, an employee of the Company (including
the subsidiaries thereof) for the purpose or with the intent
of enticing such employee away from or out of the employ of
the Company including the subsidiaries thereof);
(iii) call upon any person or entity which is, at
that time, or which has been, within one (1) year prior to
that time, a tobacco supplier (and excluding a food supplier),
joint venturer, licensee, or operator of the Company
(including the subsidiaries thereof) within the Territory for
the purpose of soliciting or selling products or services in
direct competition with the Parlors within the Territory;
(iv) call upon any prospective acquisition candidate,
on Employee's own behalf or on behalf of any competitor, which
candidate was either called upon by the Company (including the
subsidiaries thereof) or for which the Company made an
acquisition analysis, for the purpose of acquiring such
entity; or
(v) disclose the Company's tobacco suppliers (and
excluding food suppliers), joint venturers, licensees or
operators, whether in existence or proposed, of the Company
(or the Subsidiaries thereof) to any person, firm,
partnership, corporation or business for any reason or purpose
whatsoever.
Notwithstanding the above, the foregoing covenant shall not be
deemed to prohibit Employee from acquiring as an investment not more
than three percent (3%) of the capital stock of a competing business,
whose stock is traded on a national securities exchange or
over-the-counter.
(b) Because of the difficulty of measuring economic losses to
the Company as a result of a breach of the foregoing covenant and
because of the immediate and irreparable damage that could be caused to
the Company for which it would have no other adequate remedy, Employee
agrees that the foregoing covenant may be enforced by the Company in
the event of breach by his by injunctions and restraining orders.
(c) It is agreed by the parties that the foregoing covenants
in this paragraph 3 impose a reasonable restraint on Employee in light
of the activities and business of the Company (including the Company's
subsidiaries) on the date of the execution of this Agreement and the
current plans of the Company (including the Company's subsidiaries).
(d) The covenants in this paragraph 3 are severable and
separate, and the unenforceability of any specific covenant shall not
affect the provision of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth are unreasonable, then it is the
intention of the parties that such restrictions be enforced to the
fullest extent which the court deems reasonable, and the Agreement
shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be
construed as an agreement independent of any other provision in this
Agreement, and the existence of any claim or cause of action of
Employee against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of such covenants. It is specifically agreed that the period of
one (1) year stated at the beginning of this paragraph 3 shall be
effective, shall be computed by excluding from such computation any
time during which Employee is in violation of any provision of this
paragraph 3.
4. TERM; TERMINATION; RIGHTS ON TERMINATION. The term of this Agreement
shall begin on November 1, 1996 and continue for five (5) years (the "Initial
Term"), and, unless terminated sooner as herein provided, shall continue
thereafter on a year-to-year basis on the same terms and conditions contained
herein. This Agreement and Employee's employment may be terminated in any one of
the following ways:
(a) DEATH. The death of Employee shall immediately terminate
the Agreement with no severance compensation due to Employee's estate.
(b) DISABILITY. If, as a result of incapacity due to physical
or mental illness or injury, Employee shall have been absent from his
full-time duties hereunder for three (3) consecutive months, then
thirty (30) days after receiving written notice (which notice may occur
before or after the end of such three (3) month period, but which shall
not be effective earlier than the last day of such three (3) month
period), the Company may terminate Employee's employment hereunder
provided Employee is unable to resume his full-time duties at the
conclusion of such notice period. Also, Employee may terminate his
employment hereunder if his health should become impaired to an extent
that makes the continue performance of his duties hereunder hazardous
to his physical or mental health or his life, provided that Employee
shall have furnished the Company with a written statement from a
qualified doctor to such effect and provided, further, that at the
Company's request made within thirty (30) days of the date of such
written statement, Employee shall submit to an examination by a doctor
selected by the Company who is reasonably acceptable to Employee or
Employee's doctor and such doctor shall have concurred in the
conclusion of Employee's doctor. In the event this Agreement is
terminated as a result of Employee's disability, Employee shall receive
from the Company, in a lump-sum payment due within ten (10) days of the
effective date of termination, the base salary at the rate then in
effect for a period of one (1) year.
(c) GOOD CAUSE. The Company may terminate the Agreement ten
(10) days after written notice to Employee for good cause, which shall
be: (i) Employee's material breach of this Agreement (continuing for
ten (10) days after receipt of written notice); (ii) Employee's gross
negligence in the performance or intentional nonperformance (continuing
for ten (10) days after receipt of written notice) of any of Employee's
material duties and responsibilities hereunder; (iii) Employee's
dishonesty, fraud or misconduct with respect to the business or affairs
of the Company which materially and adversely affects the operations or
reputation of the Company; (iv) Employee's conviction of a felony
crime; or chronic alcohol abuse or illegal drug abuse by Employee. In
the event of a termination for good cause, as enumerated above,
Employee shall have no right to any severance compensation.
(d) WITHOUT CAUSE. At any time after the commencement of
employment, the Company may, without cause, terminate this Agreement
and Employee's employment, effective thirty (30) days after written
notice is provided by the Company. Should Employee be terminated by the
Company without cause, Employee shall receive from the Company, in a
lump-sum payment due on the effective date of termination, the base
salary at the rate then in effect for one (1) year.
(e) TERMINATION BY EMPLOYEE FOR GOOD REASON. The Employee may
terminate his employment hereunder for "Good Reason." As used herein,
"Good Reason" shall mean the continuance of any of the following after
10 days' prior written notice by Employee to the Company, specifying
the basis for such Employee's having Good Reason to terminate this
Agreement:
(i) the assignment to Employee of any duties
materially and adversely inconsistent with the Employee's
position as specified in paragraph 1 hereof (or such other
position to which he may be promote), including status,
offices, responsibilities or persons to whom the Employee
reports as contemplated under paragraph 1 of this Agreement,
or any other action by the Company which results in a material
and adverse change in such position, status, offices, titles
or responsibilities;
(ii) Employee's removal from, or failure to be
reappointed or re-elected to, Employee's position under this
Agreement, except as contemplated by paragraphs 4(a), (b), and
(c); or
(iii) any other material breach of this Agreement by
the Company, including the failure to pay Employee on a timely
basis the amounts to which he is entitled under this
Agreement.
In the event of any termination by the Employee for Good
Reason, as determined by a court of competent jurisdiction or pursuant
to the provisions of paragraph 14 below, the Company shall pay to
Employee in a lump-sum payment the base salary at the rate then in
effect for one (1) year.
(f) TERMINATION BY EMPLOYEE WITHOUT CAUSE. If Employee resigns
or otherwise terminates his employment without Good Reason pursuant to
paragraph 4(e), Employee shall receive no severance compensation.
Upon termination of this Agreement for any reason provided in clauses
(a) through (f) above, Employee shall be entitled to receive all compensation
earned and all benefits vested and reimbursements due through the effective date
of termination. Additional compensation subsequent to termination, if any, will
be due and payable to Employee only to the extent and in the manner expressly
provided above. All other rights and obligations of the Company and Employee
under this Agreement shall cease as of the effective date of termination, except
that the Company's obligations under paragraph 8 herein and Employee's
obligations, if any, under paragraphs 3, 5, 6, 7 and 9 herein shall survive such
termination in accordance with their terms.
5. RETURN OF COMPANY PROPERTY. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Employee by or on behalf of the Company shall be and
remain the property of the Company and be subject at all times to its discretion
and control. Likewise, all correspondence, reports, records, charts, advertising
materials and other similar data pertaining to the business, activities or
future plans of the Company which is collected by Employee shall be delivered
promptly to the Company without request by it upon termination of Employee's
employment.
6. INVENTIONS. Employee shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by Employee,
solely or jointly with another, during the period of employment and which are
directly related to the business or activities of the Company. Employee hereby
assigns and agrees to assign all his interests therein to the Company or its
nominee. Whenever requested to do so by the Company, Employee shall execute any
and all applications, assignments or other instruments that the Company shall
deem necessary or apply for and obtain Letters of Patent of the United States or
any foreign country or to otherwise protect the Company's interest therein. THIS
SECTION 6 DOES NOT APPLY TO AN INVENTION FOR WHICH NO EQUIPMENT, SUPPLIES,
FACILITY OR TRADE SECRET OR CONFIDENTIAL INFORMATION OF THE COMPANY WAS USED AND
WHICH INVEN TION WAS DEVELOPED ENTIRELY ON THE EMPLOYEE'S OWN TIME, AND (i)
WHICH DOES NOT RELATE (A) DIRECTLY TO THE BUSINESS OF THE COMPANY, OR (B) TO THE
COMPANY'S ACTUAL OR DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT, OR (ii)
WHICH INVENTION DOES NOT RESULT FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE
COMPANY.
7. TRADE SECRETS. Employee agrees that he will not, during the term of
this Agreement with the Company, disclose the specific terms of the Company's
relationships or agreements with its significant vendors or customers or any
other significant and material trade secret of the Company, whether in existence
or proposed, to any person, firm, partnership, corporation or business for any
reason or purpose whatsoever, except as is disclosed in the ordinary course of
business, unless compelled by court order.
8. INDEMNIFICATION. In the event Employee is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the Company
against Employee), by reason of the fact that he is or was performing services
under this Agreement or is or was an officer of the Company, then the Company
shall indemnify Employee against all expenses (including attorney's fees),
judgments, fines and amounts paid in settlement, as actually and reasonably
incurred by Employee in connection therewith to the fullest extent authorized by
Minnesota law. In the event that both Employee and the Company are made a party
to the same thirty-party action, complaint, suit or proceeding, the Company
agrees to engage competent legal representation, and Employee agrees to use the
same representation, provided that if counsel selected by the Company shall have
a conflict of interest that prevents such counsel from representing Employee,
Employee may engage separate counsel and the Company shall pay all attorneys'
fees of such separate counsel. Further, while Employee is expected at all times
to use his best efforts to faithfully discharge his duties under this Agreement,
Employee cannot be held liable to the Company for errors or omissions made in
good faith where Employee has not exhibited gross, willful and wanton negligence
and misconduct or performed criminal and fraudulent acts which materially damage
the business of the Company.
9. NO PRIOR AGREEMENTS. Employee hereby represents and warrants to the
Company that the execution of this Agreement by Employee and his employment by
the Company and the performance of his duties hereunder will not violate or be a
breach of any Agreement with a former employer, client or any other person or
entity. Further, Employee agrees to indemnify the Company for any claim,
including, but not limited to, attorneys' fees and expenses of investigation, by
any such third party that such third party may now have or may hereafter come to
have against the Company based upon or arising out of any non-competition
Agreement, invention or secrecy Agreement between Employee and such third party
which was in existence as of the date of this Agreement.
10. ASSIGNMENT; BINDING EFFECT. Employee understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Employee agrees, therefore, he cannot
assign all or any portion of his performance under this Agreement. Subject to
the preceding two (2) sentences, this Agreement shall be binding upon, inure to
the benefit of and be enforceable by the parties hereto and their respective
heirs, legal representatives, successor and assigns.
11. COMPLETE AGREEMENT. This Agreement is a promise of future
employment. Employee has no oral representations, understanding or agreements
with the Company or any of its officers, directors or representatives covering
the same subject matter as this Agreement. This written Agreement is the final,
complete and exclusive statement and expression of the agreement between the
Company and Employee and of all the terms of this Agreement, and it cannot be
varied, contradicted or supplemented by evidence of any prior or contemporaneous
oral or written agreements. This written Agreement may not be later modified
except by a further writing signed by a duly authorized officer of the Company
and Employee, and no term of this Agreement may be waived except by writing
signed by the party waiving the benefit of such term.
12. NOTICE. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To the Company:
Woodroast Systems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
To the Employee:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party may
change the address for notice by notifying the other party of such change in
accordance with this paragraph 12.
13. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held in valid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
14. ARBITRATION. Any unresolved dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three (3) arbitrators in Minneapolis, Minnesota, in
accordance with the rules of the American Arbitration Association then in
effect. The arbitrators shall not have the authority to add to, detract from, or
modify any provisions hereof nor to award punitive damages to any injured party.
The arbitrators shall have the authority to order back-pay, severance
compensation, vesting of options (or cash compensation in lieu of vesting of
options), reimbursement of costs, including those incurred to enforce this
Agreement and interest thereon. A decision by a majority of the arbitration
panel shall be final and binding. Judgment may be entered on the arbitrators'
award in any court having jurisdiction. The direct expense of any arbitration
proceeding shall be borne equally by the Company and Employee.
15. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Minnesota.
SIGNATURES:
Date: September 25, 1996 /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
"Employee"
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Witness
WOODROAST SYSTEMS, INC.
Dated: September 25, 1996 By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Its Chief Executive Officer
----------------------------------- "Company"
Witness