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EXHIBIT 10.45
EMPLOYMENT AGREEMENT
CKE RESTAURANTS, INC.
AGREEMENT, dated as of January 24, 1996 by and between CKE RESTAURANTS,
INC., a California corporation (the "Company") and Robert E. Wheaton (the
"Executive") presently residing at 4716 East Valley Vista Lane, Paradise Valley,
Arizona 85253.
WITNESSETH:
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed to provide his services to the Company, all on the terms
and subject to the conditions, as hereinafter set forth:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and obligations hereinafter set forth, the parties agree as follows:
1. EMPLOYMENT. The Company agrees to employ the Executive as
its Executive Vice President of Finance during the Employment Term (as defined
in paragraph 3) and the Executive hereby accepts such employment and agrees to
serve the Company subject to the general supervision, advice and direction of
the Chief Executive Officer and the President and upon the terms and conditions
set forth in this Agreement.
2. DUTIES. During the Employment Term, the Executive shall
perform such services and duties as would normally be ascribed to a person with
the position of Executive Vice President of Finance. The Executive shall devote
the Executive's full time and best efforts to the business affairs of the
Company; however, with the approval of the Board of Directors, the Executive may
devote reasonable time and attention to:
(i) serving as a director or member of a committee of
any non-for-profit organization or engaging in other
charitable or community activities;
(ii) upon approval of the Board of Directors, serving
as a director of a corporation or as a member of a committee
of an organization;
(iii) managing his personal investments;
provided that the Executive agrees to be bound by the conflict of interests
policy of the Company and may not accept employment or any engagement with any
other individual or other entity, or engage in any other venture which is in
conflict with the business of the Company.
3. EMPLOYMENT TERM. The Executive shall be employed under this
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Agreement for a term of two (2) years from the date of execution of this
Agreement, (the "Employment Term") commencing on the date hereof and terminating
on the close of business on January 24, 1998, unless sooner terminated as
provided in paragraphs 6, 7, 8, 9 or 10. Said contract shall automatically renew
each year for an additional one year term unless the Company notifies Executive
that it is terminating this renewal prior to January 23rd of such year. If the
Company so informs Executive, this Agreement shall terminate one year from the
January 23rd following or upon which the Company so informs Executive.
4. COMPENSATION.
4.a. BASE COMPENSATION. During the Employment Term, the
Company will pay the Executive an annual base salary as compensation for his
services hereunder of $200,000 (the "Base Salary"), payable in equal
installments not less often than once in each calendar month.
4.b. BONUS. As additional compensation to Executive, Company
shall pay an annual bonus based on performance criteria specified by the
Compensation Committee for the Company.
4.c. VACATION. During each calendar year of the Employment
Term, the Executive shall be entitled to take paid vacation time for such length
of time as determined by the Chief Executive Officer or President.
4.d. BENEFITS. During the Employment Term, the Executive shall
be entitled to participate in all pension, profit sharing and other retirement
plans, all inventive compensation plans and all group health, hospitalization
and disability insurance plans and other employee welfare benefit plans in which
other executives of the Company participate. Executive may, at his option, not
participate in the Company's group health and hospitalization plan in which case
the Company shall pay up to $400 per month during the Employment Term towards
Executive's current health plan.
4.e. MEDICAL EXAMINATION. Executive agrees to submit, at any
time requested by the Company, to a medical physical examination by a physician
selected by the Company. The cost of said examination shall be borne by the
Company.
5. REIMBURSEMENT OF EXPENSES INCURRED IN PERFORMANCE OF
EMPLOYMENT. In addition to the compensation provided for under paragraph 4
hereof, upon submission of proper vouchers, the Company shall pay or reimburse
the Executive for all normal and reasonable expenses, including travel expenses,
incurred by the Executive prior to the termination of the Employment Term in
connection with the Executive's responsibilities to the Company.
The Executive currently resides in Phoenix, Arizona and he
will incur travel expenses in commuting to the Company's headquarters in Orange
County. The Company agrees to reimburse Executive for all such reasonably
incurred out-of-pocket travel expenses not to exceed $2,000 per month for the
first twelve (12) months of Executive's employment hereunder. Should Executive
decide to relocate to Orange County California during the term of this
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Agreement, the Company shall reimburse Executive for his moving expenses not to
exceed $5,000.
6. TERMINATION FOR CAUSE. The Company may dismiss Executive
for good and valid cause and shall then and thereafter be relieved of its
obligations hereunder. In such event Executive shall not receive any severance
pay or pro-rata portion of any bonus compensation otherwise payable pursuant to
paragraph 4 hereof. As used herein, "good and valid cause" shall mean a breach
of material duty by Executive in the course of his employment, the habitual
neglect of this duties, or the commission by Executive of any act of a
fraudulent or criminal nature (excluding minor traffic violations or other
infractions of a non-serious nature).
7. TERMINATION WITHOUT CAUSE BY THE COMPANY. If Executive is
terminated for reasons other than cause as defined in paragraph 6 hereof, the
Company will pay Executive, not later than 30 days after such termination, in a
lump sum, his Base Salary for the balance of the Employment Term (which shall
not exceed two (2) years) together with all accrued but unpaid compensation and
benefits pursuant to paragraph 4 hereof including prorated bonus (if any),
through the date of the Executive's termination. Executive shall be deemed to
have been terminated for reasons other than cause if Executive voluntarily
terminates his employment in response to the Company relocating its headquarters
for executive offices to a location outside the state of California.
The date of termination of employment by the Company
under paragraphs 6 and 7 shall be the date specified in a written notice of
termination by the Chief Executive Officer or President to Executive which shall
be at least twenty (20) days after the date of the written notice of
termination. If no date is specified, termination date will be the date
Executive is given notice by the Chief Executive Officer and President.
8. RESIGNATION. In the event, at anytime during the term of
this Agreement, Executive resigns for reasons other than as specified in
paragraph 7 or 9, Company shall then and thereafter be relieved from is
obligations hereunder.
9. CHANGE OF CONTROL. In the event, at any time during the
term of this Agreement, the Company is acquired by or merged with another
corporation or entity (or a subsidiary thereof) such that the direction or
control of the Company is acquired, or all or substantially all of the assets of
the Company are acquired in a transaction or series of transactions, by an
individual, entity or group of individuals or entities acting together that had
no such direction or control prior to such acquisition or merger and in
anticipation of that acquisition or after it is completed, the Executive is
terminated for other than cause, then the Executive shall be entitled to receive
in a lump sum payment all amounts provided for by paragraph 4.a., above, for the
balance of the Employment Term, plus all other compensation and all benefits
that would have been payable or available to Executive in the event of a
termination under Section 7 of this Agreement. For purposes of this Section 9,
direct or indirect ownership of stock having at least 30 percent of the voting
power of the Company (or a contract or other arrangement conferring similar
rights) shall be deemed to constitute control and thus be deemed the type of
acquisition contemplated by this Section 9.
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10. DISABILITY OR DEATH.
10.a. DISABILITY OF THE EXECUTIVE. If Executive for any reason
whatsoever becomes permanently disabled so that the executive is unable to
perform the duties described in Paragraph 2 herein, the Company agrees to pay
Executive fifty percent (50%) of Executive's annual salary payable in the same
manner as provided for the payment of salary herein for the remainder of the
Employment Term provided for herein.
"Permanent disability" shall mean the Executive is
unable to perform the duties contemplated by this Agreement by reason of a
physical or mental disability or infirmity which has continued for more than 90
consecutive calendar days. Executive agrees to submit such medical evidence
regarding such disability or infirmity as may be requested by the Company.
10.b. DEATH OF EXECUTIVE. Upon the death of the Executive for
any reason whatsoever, the Company shall then and thereafter be released from
its obligations hereunder.
11. PROTECTED INFORMATION; PROHIBITED SOLICITATION.
11.a. The Executive hereby recognizes and acknowledges that
during the course of this employment by the Company, the Company has disclosed
and will furnish, disclose or make available to the Executive confidential or
proprietary information related to the Company's business, including, without
limitation, customer lists, ideas, processes, inventions and devices, that such
confidential or proprietary information has been developed and will be developed
through the expenditure by the Company of substantial time and money and that
all such confidential information shall constitutes trade secrets, and further
agrees to use such confidential proprietary information only for the purpose of
carrying out his duties with the Company and not otherwise to disclose such
information. No information otherwise in the public domain shall be considered
confidential.
11.b. The Executive hereby agrees, in consideration of his
employment hereunder and in view of the confidential position to be held by the
Executive hereunder, that during the Employment Term and for the period ending
on the date which is one (1) year after the later of (A) the termination of the
Employment Term and (B) the date on which the Company is no longer required to
provide the payments and benefits described in paragraph 4, the Executive shall
not, without the written consent of the Company, knowingly solicit, entice or
persuade any other employees of the Company or any affiliate of the Company to
leave the services of the Company or such affiliate for any reason.
11.c. So long as the Executive is employed by the Company and
so long as the restrictions of this paragraph 11 apply, prior to accepting any
engagement to act as an employee, officer, director, trustee, principal, agent
or representative of any type of business or service (other than as an employee
of the Company), the Executive shall (A) disclose such engagement in writing to
the Company, and (B) disclose to the other entity to which he has agreed to act
as an employee, officer, director, trustee, agent or representative, or to other
principals together with
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whom he proposes to act as a principal in such business or service, the
existence of the covenants set forth in this paragraph 11 and the provisions of
paragraph 12 hereof.
11.d. The restrictions of this paragraph 11 shall survive the
termination of this Agreement and shall be in addition to any restrictions
imposed upon he Executive by statute or at common law.
12. INJUNCTIVE RELIEF. The Executive hereby expressly
acknowledges that any breach or threatened breach by the Executive of any of the
terms set forth in paragraph 11 of this Agreement may result in significant and
continuing injury to the Company, the monetary value of which would be
impossible to establish. Therefore, the Executive agrees that the Company shall
be entitled to apply for injunctive relief in a court of appropriate
jurisdiction. The provisions of this paragraph 12 shall survive the Employment
term.
13. PARTIES BENEFITED; ASSIGNMENTS. This Agreement shall be
binding upon the Executive, the heirs and personal representative or
representatives of the Executive and upon the Company and its successors and
assigns. Neither this Agreement nor any rights or obligations hereunder may be
assigned by the Executive.
The Company will not consolidate with, merge into, or sell all
of substantially all of its assets to another corporation, partnership, or other
entity unless such corporation, partnership, or entity shall assume this
Agreement, and upon such assumption Executive and remaining corporation,
partnership or other entity, shall become obligated to perform all of the terms
and conditions set forth herein. However, that assignment shall not relieve the
Company of its obligations under this Agreement.
14. NOTICES. Any notice required or permitted by this
Agreement shall be in writing, sent by personal delivery or by registered or
certified mail, return receipt requested, addressed to the President of the
Company at its then principal office, or to the Executive at the address set
forth in the preamble, as the case may be, or to such other address or addresses
as any party hereto may from time to time specify in writing for the purpose of
a notice given to the other parties in compliance with this paragraph 14. Notice
shall be deemed given when received.
15. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California
without regard to conflict of law principles.
16. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES. The Company
will indemnify the Executive to the fullest extent permitted by the laws of the
State of California, as in effect at the time of the subject act or omission,
and the Executive shall be entitled to the protection of any insurance policies
the Company may elect to maintain generally for the benefit of its directors and
officers insuring against all costs, charges and expenses whatsoever incurred or
sustained by the Executive in connection with any action, suit or proceedings to
which the Executive may be made a part by reason of being or having been an
officer or employee of the Company or any of its subsidiaries or serving or
having served any other enterprises at the request
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of the Company (other than any dispute, claim or controversy described in
paragraph 11 of this Agreement except, that the Executive shall be entitled to
reimbursement of reasonable attorneys' fees and expenses if the Executive is the
prevailing party).
17. OPTIONS. Executive shall receive a grant of an option to
purchase 25,000 shares under the Company's 1994 Stock Incentive Plan. Vesting of
such options shall accelerate to the date of termination (if any) pursuant to
paragraph 7 or 9 above and Executive shall have ninety (90) days after such
termination within which to exercise the option. In the event of any conflict or
inconsistency between the Plan (and any agreements thereunder) and this
Agreement, this Agreement shall control.
18. ARBITRATION. The parties agree that any controversy or
claim arising out of, or in any way related to, this Agreement, to a breach or
alleged breach of this Agreement or to any other aspect of the Executive's
employment shall be settled by Arbitration in accordance with the Rules of the
American Arbitration Association (the "Association"). The parties further agree
that judgment upon any award rendered by the arbitrator may be entered in any
court of competent jurisdiction.
Should either party hereto institute any action or proceeding
to enforce any provision hereof, or for damages by reason of any alleged breach
of any provision of this Agreement, or for a declaration of such party's rights
or obligations hereunder, or for any other judicial remedy, the prevailing party
shall be entitled to costs and expenses incurred thereby, including, without
limitation, reasonable attorneys' fees and expenses, pre-arbitration,
arbitration and appellate costs, costs and expenses incurred in ascertaining or
enforcing such party's rights under this Agreement, and any additional relief to
which such party may be entitled.
The decision of the arbitrator within the scope of the
submission shall be final and binding on all parties, and, accordingly, the
parties agree that any right to judicial action on any matter subject to
arbitration hereunder is hereby waived (unless otherwise provided by applicable
law), except the right to judicial action to compel arbitration or to enforce
the arbitration award, or except in the event arbitration is unavailable to the
parties for any reason.
19. SOURCE OF PAYMENTS. All payments provided under this
Agreement, shall be paid in cash from the general funds of the Company and no
special or separate fund shall be established and no other segregation of assets
made to assure payment. To the extent that any person acquires a right to
receive payments from the Company hereunder, such right shall be no greater than
the right of an unsecured creditor of the Company.
20. MISCELLANEOUS. This Agreement contains or refers to the
entire agreement of the parties relating to the subject matter hereof. The
Agreement supersedes any prior written or oral agreements or understandings
between the parties relating to the subject matter hereto. No modification or
amendment of this Agreement shall be valid unless in writing and signed by or on
behalf of the parties hereto. A waiver of the breach of any term or condition of
this Agreement shall not be deemed to constitute a waiver of any subsequent
breach of the same of any other term or condition. This Agreement is intended to
be performed in accordance with, and
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only to the extent permitted by, all applicable laws, ordinances, rules and
regulations. If any provision of this Agreement, or the application thereof to
any person or circumstance, shall for any reason and to any extent, be held
invalid or unenforceable, such invalidity and unenforceability shall not affect
the remaining provisions hereof and the application of such provisions to other
persons or circumstances, all of which shall be enforced to the greatest extent
permitted by law. The compensation provided to the Executive pursuant to this
Agreement shall be subject to any withholdings and deductions required by any
applicable tax laws. Any amounts payable to the Executive hereunder after the
death of the Executive shall be paid to the Executive's estate or legal
representative.
The headings in this Agreement are inserted for convenience of
reference only and shall not be part of or control or affect the meaning of any
provision hereof.
IN WITNESS WHEREOF, the parties have duly executed and
delivered this Agreement as of the day and year first above written.
CKE RESTAURANTS, INC.
By: /s/ C. Thomas Thompson
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Its: President
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EXECUTIVE
/s/ Robert E. Wheaton
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Robert E. Wheaton