Employment Agreement - America's Favorite Chicken Co. and Samuel N. Frankel
EMPLOYMENT AGREEMENT
dated as of December 4, 1995 between
America's Favorite Chicken Company (the "Company") and
Samuel N. Frankel ("Employee")
WHEREAS, the Company desires to employ Employee and to enter into an
agreement embodying the terms of such employment; and
WHEREAS, Employee desires to accept such employment and to enter into such
agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term Of Agreement.
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This Agreement shall be effective as of the date hereof and, unless earlier
terminated pursuant to Section 9 hereof, shall be for one initial term of three
(3) years (the "Term"). The Term of this Agreement and Employee's employment
hereunder will automatically be extended for an additional one-year following
the expiration of each year of employment hereunder (the "Renewal Date"),
without further action by Employee or the Company unless either the Company or
Employee gives to the other written notice not to renew for an additional one
year not less than one (1) year prior to the Renewal Date. In the event the
Company gives the Employee written notice of nonrenewal as provided herein,
Employee shall have the right to terminate this Agreement at any time during the
remaining term hereof and receive the benefits set forth in Sections 4.07, 9.03
and 9.05 hereof.
2. Employment.
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2.01 Position. Employee shall serve as executive Vice President, General
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Counsel and Secretary of the Company and shall perform such duties consistent
with his position as may be assigned to him from time to time by the Board of
Directors of the Company.
2.02 Time and Efforts. Employee, so long as he is employed hereunder,
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shall devote his full business time and attention to the services required of
him hereunder, except as otherwise agreed and for vacation time and reasonable
periods of absence due to sickness or personal injury, and shall use his best
efforts, judgment and energy to perform, improve and advance the business and
interests of the Company in a manner consistent with the duties of his position.
3. Base Salary.
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Beginning on January 1, 1996 and continuing during the term hereof, the
Company shall pay Employee, in equal installments no less frequently than
monthly, a base salary at the rate of no less than Two Hundred Seventy-Five
Thousand Dollars (U.S. $275,000.00) per annum. The
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Employee's base salary shall be reviewed by. the Board of Directors of the
Company on an annual basis.
4. Bonus.
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4.01 Grant of Bonus. Employee shall be entitled to an annual bonus (the
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"Bonus") determined as hereinafter provided.
4.02 Determination of Amount of Bonuses. The amount of the Bonus, if any,
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payable to Employee with respect to any fiscal year of the Company shall be the
percentage (set forth in Column B Below) of the Base Salary for such fiscal year
that conforms to the "Operating Result" for such fiscal year set forth in Column
A. For any fiscal year of the Company, the "Operating Result" shall be the
result obtained from the following calculation:
Operating Result = Performance Earnings Before Interest and Taxes
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Target Earnings Before Interest and Taxes
A B
- -
Percent of Annual Base Salary
Operating Result Payable to Employee as a Bonus
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less than 0.80 0%
0.80 or greater but less than 0.85 40%
0.85 or greater but less than 0.90 45%
0.90 or greater but less than 0.95 50%
0.95 Or greater but less than 1.00 55%
1.00 or greater 60% plus one and one-half (1-
1/2%) percent of each dollar
of Performance Earnings
before Interest and Taxes, or
fraction thereof, in excess
of Target Earnings before
Interest and Taxes up to a
maximum bonus of 100% of
Annual Base Salary.
4.03 Determination of Performance Earnings before Interest and Taxes.
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Performance Earnings before Interest and Taxes for purposes of Section 4 is
defined to mean net income before extraordinary and nonrecurring items,
interest, income taxes and cumulative effects of
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changes in accounting principles determined in accordance with generally
accepted accounting principles ("GAAP") consistent with prior periods and such
principles used in determining Target Earnings before Interest and Taxes.
Performance Earnings before Interest and Taxes shall be determined annually by
the Company and reviewed by the accounting firm auditing the financial
statements of the Company. Any charge against earnings resulting from a
difference in the fair market value of the Stock Options referred to in Section
5.01 and the option price thereof shall be considered an "extraordinary item"
for purposes of determining Performance Earnings before Interest and Taxes.
4.04 Determination of Target Earnings before Interest and Taxes. Target
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Earnings before Interest and Taxes for any period shall be the projected Target
Earnings before Interest and Taxes for such period as set forth in the Company's
annual operating plan approved by the Board of Directors of the Company.
4.05 Payment of Bonuses. If Employee is entitled to a bonus for any fiscal
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year, an accounting will be furnished and payment will be made to Employee
within fifteen (15) days following completion of the annual audit, but in no
event later than 105 days following the end of each fiscal year.
4.06 First Bonus Period. Notwithstanding anything herein to the contrary,
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at the end of the 1995 fiscal year of the Company, Employee shall be entitled to
a Bonus calculated under the provisions of Section 4.02 hereof using the Base
Salary amount set forth in Section 3 hereof.
4.07 Termination of Employment. If Employee's employment hereunder shall
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terminate other than pursuant to Section 9.04, the Employee shall receive the
Bonus to which he would have been entitled for the entire fiscal year in which
such termination occurs. If Employee's employment hereunder shall terminate
pursuant to Section 9.04, no Bonus shall be payable to Employee for the fiscal
year in which such termination occurs.
5. Stock Options; Registration Rights; Shareholder's Agreement.
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5.01 Stock Options. The Company has granted to Employee options (the
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"Options") to purchase 170,000 shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), representing 1.5% of the fully diluted
Common Stock. The Options were granted pursuant to the terms of the Company's
1992 Stock Option Plan (the "Plan") and a Nonqualified Stock Option Agreement
(the "Stock Option Agreement"), copies of which are on file in the records of
the Company.
5.02 Registration Rights. The Company and Employee shall enter into the
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Registration Rights Agreement (the "Registration Rights Agreement"), a copy of
which is attached hereto as Exhibit "A" simultaneous with the execution of this
Agreement.
5.03 Shareholders' Agreement. The Employee has agreed to be bound by the
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terms of the Shareholders' Agreement (the "Shareholders' Agreement") as
identified in the Stock Option Agreement, a copy of which is on file in the
records of the Company.
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6.0 Employee Benefits.
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Employee shall be provided employee benefits, including $500,000.00 face
amount of life insurance (assuming standard rates), health, accident and
disability insurance under the Company's plans, policies and programs available
to senior executive officers of the Company, in accordance with the provisions
of such plans, policies and programs governing eligibility and participation.
7. Perquisites.
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7.01 Automobile and Car Phone Allowances. The Company shall provide
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Employee with an automobile allowance in the amount of $750.00 per month and a
car phone allowance in the amount of $150.00 per month.
7.02 Vacation. Employee shall be entitled to four (4) weeks paid vacation
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each year during the term hereof.
7.03 Other Perquisites. Employee shall be provided additional perquisites
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in accordance with the Company's policies for similarly situated senior
executives of the Company.
8. Business Expenses.
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All reasonable and customary business expenses incurred by Employee in the
performance of his duties hereunder shall be paid or reimbursed by the Company
in accordance with the Company's policies.
9. Termination of Employment.
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9.01 Definitions. For purposes of this Section 9, the following terms shall
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have the following meanings:
(a) Cause. The term "Cause" shall mean (I) Employee commits fraud
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or is convicted (all appeals final) of a crime involving moral turpitude, (ii)
Employee, in carrying out his duties hereunder, has been guilty of gross neglect
or gross misconduct resulting in material harm to the Company or any of its
affiliates, (iii) Employee shall have repeatedly refused to follow or comply
with the duly promulgated directives (consistent with his position) of the board
of directors of the Company or the President, or (iv) Employee otherwise
materially breaches this agreement, and if such breach is susceptible to cure,
fails to cure such breach within thirty (30) days of receipt of written notice
thereof from the Company.
(b) Disability. The term "Disability" shall mean to good faith
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determination of the board of directors of the Company that Employee has failed
to or has been unable to
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perform his duties as the result of any physical or mental disability for an
aggregate of ninety (90) calendar days.
9.02 Termination upon Death or Disability. If Employee's employment is
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terminated due to his death or disability, the Company shall pay to the estate
of the Employee or to the Employee, as the case may be, within fifteen (15) days
following Employee's death or upon his termination in the event of disability,
all amounts payable to Employee through the date of termination pursuant to
Sections 3, 4, 5, 6, 7 and 8. In addition the Company shall pay to Employee the
Bonus payable pursuant to Section 4.07 hereof.
9.03 Termination for other than Death or Disability or for Cause. If
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Employee's employment is terminated by the Company other than (I) by reason of
his death or disability or (ii) for Cause, the Company shall pay to Employee, in
addition to any amounts unpaid under Sections 3, 4, 5, 6, 7 and 8, severance pay
in the amount of two and one-half (2-1/2) times Employee's Base Salary at the
time of termination.
In addition, all other employee benefits then being provided to Employee as
of the date of termination shall be continued for one year, and the Company
shall pay to Employee the Bonus payable to the Employee pursuant to Section 4.07
hereof.
9.04 Voluntary Termination by Employee or Termination for Cause. Employee
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may terminate his employment hereunder at any time whatsoever, with or without
cause, upon thirty (30) days written notice to the Company. The Company may
terminate Employee's employment hereunder at any time without notice for Cause.
In the event Employee's employment is terminated voluntarily by Employee or by
the Company for Cause:
(a) The Company shall pay to Employee upon such termination all
amounts then due under sections 3, 4, 5, 6, 7 and 8, prorated through the date
of termination for the year in which he is terminated; and
(b) The Company shall be under no obligation to make severance
payments to Employee.
9.05 Additional Termination Benefits. Any further benefits payable
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following any termination of Employee's employment shall be determined in
accordance with plans, policies and practices of the Company at the time of
termination.
10. Change of Control; Change in Responsibilities.
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Upon the occurrence of any of the following events:
(a) the dissolution or liquidation of the Company, or a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the owners or all of the outstanding shares of
Common Stock immediately prior to such reorganization, merger or consolidation
own in the aggregate less than 50% of the outstanding shares of
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Common Stock of the Company or any other entity into which the Company shall be
merged or consolidated immediately following the consummation thereof; or the
sale, transfer or other disposition of all or substantially all of the assets or
more than 50% of the then outstanding shares of Common Stock of the Company (a
"Change in Control");
(b) there is a material diminution of or change in Employee's
responsibilities, duties, title or reporting relationship that is not initiated
or consented to by Frank J. Belatti, or the Company's principal office is
relocated more than forty-five (45) miles from its location immediately prior to
such event (a "Change in Responsibilities"); provided that a relocation of
principal office to Atlanta, Georgia shall not be deemed a Change of
Responsibilities hereunder;
at Employee's election within ninety (90) days following the occurrence of any
such event, Employee may terminate this Agreement and in such event Employee
shall be deemed to have been terminated by the Company other than for Cause and
all amounts payable to Employee pursuant to Section 9.03 shall become
immediately due and payable.
Except as expressly contemplated by this Agreement, or in any other
agreement referred to in Section 5 hereof, no merger, reorganization,
recapitalization, sale of stock, sale of assets or other change in the capital
structure of the Company or in the identity of the legal or beneficial owners of
the Company shall affect the obligations of the Company or Employee hereunder.
11. Representations and Warranties of Company. The Company hereby
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represents, warrants, covenants and agrees as follows:
11.01 Organization. The Company is a corporation, duly organized,
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validly existing, and in good standing under the laws of Minnesota and all other
jurisdictions in which it transacts business, and has full power and authority
to own or lease and operate its properties as now being owned or leased and
operated and to carry on its business as now being conducted.
11.02 Authority. The Company has the power, legal capacity and
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authority to enter into and perform this Agreement. The execution, delivery, and
performance of this Agreement the Frankel Non-Qualified Stock Option Agreement
and, the Registration Rights Agreement have been duly and validly authorized and
approved by all necessary corporate action on the part of the Company and each
such Agreement constitutes and will constitute the valid, legal and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws of general applicability relating to or
affecting creditors' rights, or by general equitable principles.
11.03 Stock Reserve. The Company has set aside and shall maintain, and
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in the future shall set aside and maintain, if necessary, a sufficient number of
authorized but unissued shares of its Common Stock as may be necessary to
satisfy the rights of Employee under the Frankel Non-Qualified Stock Option
Agreement.
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12. Indemnification.
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A. The Company hereby indemnifies and agrees to hold harmless Employee
against all liabilities, obligations, claims, demands, actions, causes of
action, lawsuits, judgments, expenses and costs, including but not limited to
the reasonable costs of investigation and attorney's fees, incurred by the
Employee as a result of any threat, demand, claim action or lawsuits, made,
instituted or initiated against the Employee by Alvin C. Copeland, Sr., or any
relative of Alvin C. Copeland, Sr., by blood or by marriage, A1 Copeland
Enterprises, Inc., Diversified Foods and Seasonings, Inc., or any other person
or entity controlling, controlled by, or under common control with such persons
or entities which arises out of, results from, or relates to this Agreement or
any action taken or omitted by the Employee as a result of the relationship
created by this Agreement, except for Employee's own gross negligence or willful
misconduct.
B. If any claim suit or other legal proceeding shall be commenced, or any
claim or demand be asserted against the Employee and Employee desires
indemnification pursuant to this paragraph, Employee shall be notified to such
effect with reasonable promptness and shall have the fight to assume at its full
cost and expense the entire control or any legal proceeding, subject to the
right of the Employee to participate (at his full cost and expense and with
counsel of his choice) in the defense, compromise or settlement thereof. The
Employee shall cooperate fully in all respects with the Company in any such
defense, compromise or settlement, including, without limitation, making
available to the Company all pertinent information under the control of the
Employee. The Company will not compromise or settle any such action, suit,
proceeding, claim or demand without the prior written approval of.the Employee
which approval will not be unreasonably withheld or delayed.
C. The provisions of this paragraph 12 shall survive the termination of
this Agreement for any reason whatsoever for a period of twenty (20) years.
13. Arbitration.
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In the event that any dispute should arise between the parties under or in
connection with any aspect of this Agreement, and such dispute shall not have
been resolved by the parties within (60) days after it arose, then either party
may submit such dispute to arbitration. An election to submit a dispute to
arbitration shall be deemed to have been made if either party shall give the
other party written notice, within seventy-five (75) days after the dispute
arose, of its election to arbitrate. In the event arbitration is so elected,
such arbitration shall be conducted by a single arbitrator agreeable to Employee
and the Company. If the parties are unable to agree upon a single arbitrator,
they shall each select an arbitrator, and the two (2) arbitrators shall choose a
third arbitrator. A majority of the three (3) arbitrators shall determine the
dispute or controversy. Each party shall pay the expenses of any arbitrator
chosen by it, and the parties shall share equally in the expenses or any
arbitrator chosen by it, and the parties shall share equally in the expenses of
any arbitrator chosen by the two (2) arbitrators. Such arbitration shall be
conducted in a mutually agreeable location (or if a location cannot be agreed
upon, in the city of the Company's principal office), under the rules of the
American Arbitration Association. The
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award rendered by the arbitrators shall specify the findings of fact upon which
it is based and the reasons for such award with reference to and reliance on
applicable laws. Judgment upon such award may be entered in any court having
jurisdiction thereof. The Company and the Employee consent to the jurisdiction
of the state where the arbitration proceeding is to be held pursuant to the
terms hereof, for the purposes of entering judgment with respect to such award.
Once any judgment, determination, order or award shall be made hereunder by a
court or a panel of arbitrators, as the case may be (and shall become "final" as
hereinafter defined), the parties shall promptly comply with the terms or such
judgment, determination, order or award. A judgment, determination, order or
award shall be "final" if any and all appeals available therefrom shall have
been resolved or if twenty (20) days shall have elapsed from the rendering or
issuance of any such judgment, determination, order or award (or of any decision
of any appeal, therefrom) and neither party shall have commenced and be
continuing to diligently prosecute any such appeal or further appeal.
14. Attorney's Fees and Expenses.
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Except as otherwise provided in Section 12 above, in the event of any
dispute arising under or in connection with any aspect of this Agreement, the
prevailing party shall recover from the other party all costs and expenses,
including attorney's fees, incurred in connection with resolving such dispute.
15. Amendments.
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This agreement may not be altered, modified or amended except by a written
instruction signed by each of the parties hereto.
16. Successors.
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As used in this agreement, the term the Company shall include any
successors to all or substantially all of the business and/or assets of the
Company which assume and agree to perform this agreement.
17. Assignment.
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Neither this agreement nor any of the rights or obligations of either party
hereunder shall be assigned or delegated by any party hereto without the prior
written consent of the other party, except that the Company may without the
consent of Employee assign its rights and delegate its duties hereunder to any
successor to the business of the Company. No such assignment, however, shall
relieve the Company from any of its liabilities hereunder.
18. Waiver.
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Waiver by any party hereto of any breach or default by any other party of
any of the terms of this agreement shall not operate as a waiver of any other
breach or default, whether similar to or different from the breach or default
waived.
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19 Severability.
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In the event that any one or more of the provisions of this agreement shall
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not be affected thereby.
20. Survival.
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Notwithstanding anything herein to the contrary, the provisions of
Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 17 survive the termination
of this Agreement.
21. Entire Agreement.
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This agreement contains the entire understanding of the parties with
respect to the employment of Employee by the Company. There are no restrictions,
agreements, promises, warranties, covenants or undertakings other than those
expressly set forth herein. This agreement supersedes all prior agreements,
arrangements and understandings between the parties, whether oral or written,
with respect to the employment of Employee.
22. Notices.
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Notices and all other communications provided for in this agreement shall
be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by United States registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to Employee:
If to the Company to:
America's Favorite Chicken Company
Suite 1700
Six Concourse Parkway
Atlanta, Georgia 30328-5352
or to such other address or such other person as Employee or the Company shall
designate in writing in accordance with this Section 21 except that notices
regarding changes in notices shall be effective only upon receipt.
23. Headings.
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Headings to Sections in this agreement are for the convenience of the
parties only and are
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not intended to be a part of, or to affect the meaning or interpretation of,
this agreement.
24. Governing Law.
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The agreement shall be governed by the laws of the State of Minnesota
without reference to the principles of conflict of laws.
IN WITNESS WHEREOF, the Company has caused this agreement to be executed
and Employee has hereunto set his hand as of the day and year first above
written.
COMPANY:
AMERICA'S FAVORITE CHICKEN COMPANY
By: /s/ Frank J. Belatti
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Frank J. Belatti
Title: Chairman and Chief Executive Officer
EMPLOYEE:
/s/ Samuel N. Frankel
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Samuel N. Frankel