Executive Employment Agreement - Buffalo Wild Wings Inc. and Linda G. Traylor
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is hereby entered into
between Buffalo Wild Wings, Incorporated, a Minnesota corporation (the
"Company") and Linda G. Traylor ("Executive").
PREAMBLE
Executive has been employed as Senior Vice President, Human Resources
of Buffalo Wild Wings, Inc., since October 30, 2006. The Company desires to
continue to have the benefit of Executive's experience and loyalty, and
Executive desires to provide services on the terms and conditions set forth
below.
AGREEMENT
1. Definitions.
The following capitalized terms used in this Agreement shall be defined
as follows:
Agreement shall mean this Agreement between the Company and Executive.
Base Salary shall mean the annual base salary payable to Executive
pursuant to Section 4(a) hereof.
Board shall mean the Board of Directors of the Company.
Cause shall mean termination of the Executive's employment with the
Company by the President because of (1) gross misconduct, dishonesty or
disloyalty; (2) willful and material breach of this Agreement by Executive; or
(3) conviction or entry of a plea of guilty or nolo contendere to any felony or
to any misdemeanor involving fraud, misrepresentation or theft.
Code shall mean the Internal Revenue Code of 1986, as amended from time
to time.
Company shall mean Buffalo Wild Wings, Incorporated, a Minnesota
corporation, any subsidiaries thereof, and any Successors or assigns.
Company Business means the operation, management and franchising of
sports-themed grill and bar restaurants, including but not limited to food
production and development, sports-themed grill and bar restaurant and franchise
marketing, management operations and any Confidential Information the Company
either uses or intends to use in the operation, management or franchising of
such restaurants, or any other business either conducted by the Company or that
the Company is contemplating conducting as of the Date of Termination.
Competitive Business means any business which operates, manages or
franchises other sports-themed grill and bar restaurant businesses or any other
business either conducted by the Company or that the Company is contemplating
conducting as of the Date of Termination.
Confidential Information means any information or compilation of
information that Executive learns or develops during the course of employment
with the Company that derives independent economic value from not being
generally known, or readily ascertainable by proper means, by other persons who
can obtain economic value from its disclosure or use. It includes but is not
limited to trade secrets, inventions, discoveries, and may relate to such
matters as manufacturing processes, management systems and techniques and sales
and marketing plans and information.
Good Reason shall mean (1) a substantial reduction in the nature or
status of Executive's responsibilities hereunder; (2) a reduction by the Company
in the Base Salary of Executive except to the extent permitted by this
Agreement; (3) failure by the Company to allow Executive to participate to the
full extent in all plans, programs or benefits in accordance with this
Agreement; and (4) relocation of Executive's principal office more than 20 miles
from its current location. Notwithstanding the foregoing, "Good Reason" shall be
deemed to occur only if such event enumerated in (1) through (4) above has not
been corrected by the Company within two weeks of receipt of notice from
Executive of the occurrence of such event, which notice shall specifically
describe such event.
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Term shall mean the term of Executive's employment under Section 3
hereof.
Permanently Disabled shall mean permanently disabled in accordance with
the disability policy (as defined by the Company's Long-Term Disability
Insurance Plan) of the Company as in effect on the date of this Agreement and as
evaluated by sufficient documentation including doctors' statements, etc. as
requested by the Company.
Person shall mean an individual, partnership, corporation, estate or
trust or other entity.
President shall mean the individual designated as such by the Board of
Directors.
Successor shall mean any entity acquiring substantially all of the
assets of the Company or a corporation into which the Company is merged or with
which it is consolidated.
2. Employment and Duties.
(a) General. The Company hereby agrees to employ Executive as its
Senior Vice President, Human Resources upon the terms and conditions set forth
in this Agreement and Executive agrees to serve as the Senior Vice President,
Human Resources of the Company. Executive shall perform the duties and assume
the responsibilities and obligations contemplated by this position and shall
perform such other duties and undertake such other responsibilities and
obligations, consistent with this position, as the President shall determine
from time to time.
(b) Exclusive Services. The Executive shall (i) devote Executive's full
business time and attention and best efforts to the business and affairs of the
Company, (ii) use Executive's best efforts to promote and further the interests
of the Company, (iii) faithfully and diligently perform Executive's
responsibilities and duties hereunder; and (iv) act in a competent and
professional manner which reflects positively upon the Company.
(c) No Other Employment. Throughout the Term, Executive shall not,
directly or indirectly, render services to any other person or organization for
which the Executive receives compensation (excluding volunteer services and
reasonable compensation involved in serving as a director on any board of
directors) without the consent of the President or otherwise engage in
activities which would interfere significantly with the performance of
Executive's duties hereunder.
3. Term of Employment.
(a) Commencement. The term of this Agreement shall be effective as of
October 30, 2006 and may not be terminated except as expressly provided herein.
(b) Term. Unless extended by mutual consent or as provided in Section
3(c) below, this Agreement shall terminate on the first (1st) anniversary of the
Effective Date (such one-year period being hereinafter referred to as the
"Term").
(c) Automatic Extension. Following the initial expiration date of the
Term, this Agreement shall be deemed extended from year to year ("Extension
Year") unless, no later than three (3) months prior to the end of the Term (or
any Extension Year), the Company or the Executive shall have notified the other
party in writing that the Company or the Executive does not elect to extend the
Term (or any Extension Year) past its then expiration date, or if the
Executive's employment is terminated for whatever reason.
4. Compensation and Other Benefits. Subject to the provisions of this
Agreement, the Company shall pay and provide the following compensation and
other benefits to Executive during the Term as compensation for services
rendered hereunder.
(a) Base Salary. The Company shall pay to Executive a Base Salary per
annum, payable in accordance with the Company's standard payroll practices. The
Company shall be entitled to deduct or withhold all taxes and charges which the
Company may be required to deduct or withhold therefrom. The Base Salary will be
reviewed not less than annually by the President and may be increased or
reduced; provided, however, that any reduction shall be permitted only if the
Company then reduces the base compensation of its executive employees generally
and shall not exceed the average percentage reduction for all such executive
employees.
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(b) Other Plans. The Executive shall be entitled to participate in
additional Company stock option plans or other equity plans or programs, if any,
in which executives of the Company are eligible to participate generally as may
be determined by the Board of Directors.
(c) Employee Benefit Plans. At all times during the Term, Executive
shall, unless prohibited by the Code or other applicable law, be eligible to
participate in pension and welfare plans and programs of the Company for
employees, currently existing or subsequently adopted, including the following:
(i) all qualified benefit plans and programs (e.g.
defined contribution, supplemental retirement and
Section 401(k) plans, long-term disability and life
insurance plans and programs);
(ii) all hospitalization and medical plans and programs;
(iii) all retirement plans and programs (with the exception
of the Company's retirement life insurance plan); and
(iv) all deferred compensation programs.
5. Termination of Employment for Cause; Resignation; and Termination
Caused by Death or Permanent Disability.
(a) Compensation and Benefits. If Executive's employment is terminated
by the Company for Cause, if Executive resigns from employment hereunder, or if
Executive's employment is terminated as a result of death or Permanent
Disability, then Executive shall not be eligible to receive any compensation or
benefits, or to participate in any plans or programs under Section 4 hereof with
respect to future periods after the date of such termination or resignation
except for the right to receive benefits under any plan or program, to the
extent vested, in accordance with the terms of such plan or program and except
for benefits provided in accordance with customary practices of the Company at
Executive's expense (e.g., hospitalization and medical insurance).
(b) Date of Termination. The date of termination of Executive's
employment by the Company under this Section 5 shall be effective immediately
after written notice of termination, on the date of Executive's death, or on the
date Executive becomes Permanently Disabled. The date of resignation by
Executive under this Section 5 shall be one (1) month after receipt by the
Company of written notice of resignation, unless the Company agrees to a lesser
period.
6. Termination of Employment Without Cause; Resignation for Good Reason;
and Failure to Extend Employment Agreement.
(a) Compensation and Benefits. If Executive's employment is terminated
by the Company without Cause, if Executive resigns for Good Reason, or if the
Company fails to extend this Agreement, Executive shall be entitled to receive
from the Company an amount equal to half of Executive's Base Salary, payable
during the six months following the date of termination in accordance with the
Company's standard payroll practices. The Company shall be entitled to deduct or
withhold all taxes and charges which the Company may be required to deduct or
withhold therefrom.
(b) Date of Termination. The date of termination of Executive's
employment by the Company under this Section 6 shall be one (1) month after
receipt by Executive of written notice of termination, written notice of
resignation based on Good Reason, or three (3) months after receipt by Executive
of written notice that the Company will not extend this Agreement.
7. Confidential Information. Executive agrees not to directly or
indirectly use or disclose Confidential Information for the benefit of anyone
other than the Company, either during or after employment, for as long as the
information retains the characteristics of Confidential Information described in
Section 1 above.
8. Return of Documents and Property. All documents and tangible items
provided to Executive by the Company, or possessed by or created by Executive
for use in connection with Executive's employment, are the property of the
Company and shall be promptly returned to the Company on termination of
employment together with all copies, recordings, abstracts, notes or
reproductions of any kind made from or about the documents and tangible items or
the information they contain.
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9. Noncompetition. In consideration of Executive's rights under this
Agreement, including without limitation Section 6 hereof, Executive agrees that,
from and after the Effective Date and continuing until the six-month anniversary
of termination or cessation of Executive's employment with the Company,
Executive will not, individually or in any capacity with another legal entity:
(i) directly or indirectly, own any interest in, control,
be employed by or associated with, or render services
to, any person, entity, or subsidiary, subdivision,
division, or joint venture of such entity in
connection with a Competitive Business within fifteen
(15) miles of any Company Business or within fifteen
(15) miles of any location in which the Company
intends to actively operate a Company Business
(excepting passive holdings for investment purposes
of not more than one percent (1%) of the securities
of any company);
(ii) directly or indirectly, solicit any of the Company's
present or future employees for the purpose of hiring
them or inducing them to leave their employment with
the Company;
(iii) directly or indirectly, solicit, attempt to solicit,
interfere, or attempt to interfere with the Company's
relationship with its customers or potential
customers, suppliers, or franchisees on behalf of
Executive or any other person or entity engaged in a
Competitive Business.
10. Breach of the Noncompetition or Confidentiality Provisions of this
Agreement. In addition to any other relief or remedies afforded by law or in
equity, if Executive breaches Sections 8 or 10 of this Agreement, Executive
agrees that the Company shall be entitled, as a matter of right, to injunctive
relief in any court of competent jurisdiction plus reasonable attorneys' fees
for securing such relief. Executive recognizes and hereby admits that
irreparable damage will result to the Company if he violates or threatens to
violate the terms of Sections 8 or 10 of this Agreement. This Section 11 shall
not preclude the granting of any other appropriate relief including, without
limitation, money damages against Executive for breach of Sections 8 or 10 of
this Agreement.
11. Effect of Other Obligations. It is intended that the obligation of the
parties to perform the terms of this Agreement is unconditional and does not
depend on the performance or non-performance of any terms, duties or obligations
not specifically recited in this Agreement.
12. Binding Agreement. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto, any Successor to or assigns of the Company,
and Executive's heirs and the personal representative of Executive's estate.
13. Severability. If the final determination of a court of competent
jurisdiction declares, after the expiration of the time within which judicial
review (if permitted) of such determination may be perfected, that any term or
provision hereof is invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term
or provision shall be deemed replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision.
14. Amendment; Waiver. This Agreement may not be modified, amended or
waived in any manner except by an instrument in writing signed by both parties
hereto. The waiver by either party of compliance with any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any other provision of this Agreement, or of any subsequent breach by such party
of a provision of this Agreement.
15. Governing Law. All matters affecting this Agreement, including the
validity thereof, are to be governed by, interpreted and construed in accordance
with the laws of the State of Minnesota.
16. Notices. Any notice hereunder by either party to the other shall be
given in writing by personal delivery or certified mail, return receipt
requested. If addressed to Executive, the notice shall be delivered or mailed to
Executive at the address specified under Executive's signature hereto, or if
addressed to the Company, the notice shall be delivered or mailed to the Company
at its executive offices to the attention of the President of the Company. A
notice shall be deemed given, if by personal delivery, on the date of such
delivery or, if by certified mail, on the date shown on the applicable return
receipt.
17. Supersedes Previous Agreements. This Agreement supersedes all prior or
contemporaneous negotiations, commitments, agreements and writings with respect
to the subject matter hereof, all such other negotiations, commitments,
agreements and writings will have no further force or effect, and the parties to
any such other negotiation, commitment, agreement or writing will have no
further rights or obligations thereunder.
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18. Headings; Construction. The headings of Sections and paragraphs herein
are included solely for convenience of reference and shall not control the
meaning or interpretation of any of the provisions of this Agreement. This
Agreement shall be construed without regard to any presumption or other rule
requiring construction hereof against the party causing this Agreement to be
drafted.
19. Benefit. Nothing in this Agreement, express or implied, is intended to
confer on any person other than the parties hereto or their respective
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its President pursuant to the authority of its Board, and Executive has
executed this Agreement, effective as of October 30, 2006.
EXECUTIVE:
/s/ LINDA G. TRAYLOR
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Address
THE COMPANY:
BUFFALO WILD WINGS, INCORPORATED
/s/ SALLY J. SMITH
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Sally J. Smith, President
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