Exhibit 10.6.8
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made this thirteenth
day of December, 1996, by and between Thomas Howley ("Employee") and Au Bon
Pain, Co., Inc., a Delaware corporation with a principal place of business in
Boston, Massachusetts (the "Company").
WHEREAS, the Company wishes to employ and engage the services of the
Employee in an executive capacity for the Company, upon the terms, conditions,
and provisions of this Agreement; and
WHEREAS, the Employee desires to provide services to the Company in
accordance with the terms, conditions, and provisions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and Employee hereby agree as follows:
1. DEFINITIONS
For all purposes of this Agreement, the following terms shall have the
meanings specified in this Section 1 unless the context clearly requires
otherwise:
(a) "BASE SALARY" means the Employee's annualized base salary set forth in
Section 3 of this Agreement, and such increases thereto as may be
established by the Company from time to time. In no event, however,
shall Employee's Base Salary be less than the amount set forth in
Section 3 of this Agreement. "Base Salary" shall not include any
bonus, incentive compensation or employee benefits;
(b) "BENEFITS" means all employee benefits provided to the Employee by the
Company, including medical, dental, long-term disability, life
insurance, and such other benefits as may be provided from time to
time by the Company generally to its employees;
(c) "INCENTIVE COMPENSATION" means additional compensation provided to the
Employee by the Company during the term of this Agreement, if any,
other than Base Salary and Benefits;
(d) "SEVERANCE" means payments by the Company to the Employee after
termination of employment, pursuant to this Agreement, at the rate
of the Employee's annualized Base Salary (and car allowance, if
any) as of the date of Employee's termination. Severance is payable
on a weekly basis in substantially equal installments following
Employee's termination, in such increments and for such period(s)
of time designated in this Agreement ("Severance Period").
Severance shall not include any bonuses or other Incentive
Compensation. Except as set forth in the immediately preceding
sentence, Severance shall also include the continuation of
Employee's Benefits existing at the time of Employee's termination
for the Severance Period. Employee shall be responsible for making
all required contributions to continue Benefits during the
Severance Period on the same basis as existed at the time of the
Employee's termination. Severance shall be reduced (dollar for
dollar) by any compensation and benefits Employee receives or earns
during the Severance Period from any source other than the Company
including, without limitation, salary, employee benefits,
consulting fees, income from self-employment or otherwise.
2. EMPLOYMENT
The Company agrees to employ the Employee to render services to the Company
in an executive capacity. Effective as of the date hereof, Employee hereby
accepts such employment subject to the terms and conditions set forth
herein. Employee agrees to devote his full attention, best talents and
abilities to the job and to perform faithfully his duties and
responsibilities hereunder.
3. COMPENSATION
The Company shall pay Employee a Base Salary at the rate of $109,200
annualized, Incentive Compensation, and Benefits, subject to federal and
state withholdings and customary payroll deductions.
4. TERM
Unless terminated as provided in Section 5, or as otherwise provided in
this Agreement, this Agreement shall continue for a two-year period from
the commencement of Employee's employment with the Company or the effective
date of this Agreement, whichever is later; thereafter, this Agreement
shall automatically renew for additional one-year periods, unless either
party notifies the other in writing of its intent not to renew this
Agreement at least twenty-six (26) weeks prior to its expiration. In the
event that either party gives notice of intent not to renew this Agreement,
the Employee shall not be entitled to Severance.
5. TERMINATION
(a) TERMINATION FOR CAUSE
The Company may terminate Employee's employment at any time for cause,
upon written notice specifying the reasons. As used herein, the term
"cause" shall mean:
(i) The commission by Employee of any act of embezzlement, fraud,
larceny, theft, or other willful misconduct or gross negligence
in connection with the performance of Employee's duties which
adversely affects the affairs of the Company;
(ii) Employee's conviction of a felony, or conviction of a misdemeanor
involving moral turpitude;
(iii) A material breach of the terms of this Agreement which continues
for fifteen (15) days after the Company has given written notice
to the Employee specifying in reasonable detail the material
breach.
(b) TERMINATION WITHOUT CAUSE
Notwithstanding any other provision of this Agreement, the Company may
terminate Employee's employment, without cause, at any time, for any
reason, effective upon thirty (30) days' written notice to the
Employee. In the event of a termination without cause, the Employee
shall be entitled to twenty-six (26) weeks' Severance.
(c) RESIGNATION
The Employee may at any time during the term of this Agreement resign
employment, effective upon ninety (90) days' written notice to the
Company. Upon such resignation, the Employee shall not be entitled to
any Severance, and, except as otherwise specifically set forth herein,
the obligations of the Company to the Employee under this Agreement
shall terminate upon the effective date of such resignation. Employee
agrees to continue to perform his duties hereunder, and otherwise
assist the Company in an orderly transition, during such ninety-day
period.
(d) DISABILITY
The Company may terminate Employee's employment if, at any time during
the term of this Agreement, the Employee shall become disabled so that
he is unable to perform the Employee's regular duties of employment,
with reasonable accommodation, for a period of ninety (90) days in the
aggregate during any 180-day period. The determination of the
Employee's disability for purposes of this Section 5(d) shall be made
by a qualified physician acceptable to both parties. In the event that
the Company and the Employee are unable to agree upon a qualified
physician, each party shall select a qualified physician, and in the
even those two physicians are unable to agree upon a determination as
to Employee's disability, a third neutral physician ("Neutral
Physician") acceptable to the parties shall be selected. The
determination of disability by the Neutral
Physician shall be final and binding for purposes of this Agreement.
In the event this Agreement is terminated pursuant to this Section
5(d), the Employee shall be entitled to twenty-six (26) weeks'
Severance. Such Severance shall be offset dollar for dollar by any
payments made in the aggregate to the Employee under the Company's
existing Salary Continuation and Long-Term Disability Plan(s).
(e) DEATH
This Agreement and all obligations of the Company hereunder shall
terminate upon the death of the Employee. In the event of a
termination upon the death of the Employee, monies or compensation
owed by the Company to the Employee up to the date of termination
shall be paid to the Employee's estate or designee.
6. CONFIDENTIAL NATURE OF THIS AGREEMENT
Employee agrees to keep confidential the terms of this Agreement. A
violation of this provision shall entitle the Company to terminate this
Agreement immediately, for cause, as set forth in Section 5 (a)(iii).
Notwithstanding the above, the Employee may disclose the terms of this
Agreement to his immediate family, bankers, accountants, attorneys, and
other financial advisers, the Internal Revenue Service, the Massachusetts
Department of Revenue, in the event that disclosure is necessary in
litigation or arbitration involving this Agreement, or in the event that
such disclosures shall be compelled by law.
7. CONFIDENTIAL AND PROPRIETARY INFORMATION
(a) The Employee understands and acknowledges that in the course of
employment with the Company, Employee will have access to confidential
and proprietary information of the Company and its affiliates (which
shall mean entities controlling, controlled by or under common control
with the Company, including without limitation, Saint Louis Bread
Company, Inc. and its Affiliates) which constitute valuable, special
and unique assets of the Company and its Affiliates. For purposes of
this Agreement, such confidential and proprietary information shall
include, without limitation, the following: trade secrets; operating
techniques; procedures and methods; product specifications; customer
lists; account information; price lists; discount schedules;
correspondence with customers, vendors, employees, partners, or
others; drawings; software; leads from suppliers; marketing
techniques; procedures and methods; employee lists; internal financial
reports of the Company and its Affiliates; sourcing lists; and
recruiting lists (collectively, "Confidential Information").
(b) The Employee agrees that during the term of this Agreement and at any
time thereafter, Employee will not, without the authorization of the
Company: (I) disclose any Confidential Information to any person or
entity for any purpose whatsoever; or (ii) make use of any
Confidential Information for Employee's own purposes or for the
benefit of any other person or entity, other than the Company and its
Affiliates.
(c) The Employee agrees that upon the request of the Company or upon
termination of employment, Employee shall return to the Company all
documents or other materials, including electronic or computerized
data, containing or relating to Confidential Information, along with
all other Company property.
8. RESTRICTIVE COVENANT
During the term of this Agreement, and for one year after its termination,
for whatever reason, the Employee shall not, directly or indirectly, either
as an individual, employee, partner, officer, owner, director, shareholder,
advisor or consultant, or in any other capacity whatsoever, on behalf of
any person, firm, corporation, partnership or entity:
(a) be employed by or retained as a consultant or advisor to a competitive
entity in the bakery/coffee/deli business. For purposes of this
Agreement, "competitive entity"
includes, without limitation, the following companies doing business
as: WALL STREET DELI; PARADISE BAKERY, INC.; STARBUCKS; VIE DE FRANCE;
JAVA CITY; BRUEGGER'S BAGEL BAKERY; FINAGEL-A-BAGEL; LE BOULANGERIE;
GREAT HARVEST; EINSTEIN'S/NOAH'S; PEET'S; CORNER BAKERY; BIG SKY, and
their respective parents, subsidiaries, franchisees, affiliates,
successors, or assigns. Additionally, "competitive entity" shall
include, without limitation, any company which generates in the
aggregate more than 25% of its revenues from the sale of baked goods
and coffee, and their respective parents, subsidiaries, franchisees,
affiliates, successors or assigns. Notwithstanding the above, the
direct or indirect ownership of one percent (1%) or less of the stock
of a competitive entity whose shares are listed on a national
securities exchange or are quoted on the National Association of
Securities Dealers Automated Quotation System or so-called Bulletin
Board shall not, in and of itself, be deemed to be a violation of this
Section 8(a);
(b) recruit, solicit, hire, or assist any other person or party in
recruiting, soliciting, or hiring any employee of the Company or any
of its Affiliates or any of their respective franchises.
The Company may, in its sole discretion, waive enforcement of the
provisions of this Section 8, which waiver shall be evidenced solely
by the execution and delivery to the Employee of a written document
setting forth the terms of such waiver, executed by an authorized
representative of the Company.
9. ENFORCEMENT
Employee agrees and acknowledges that a violation of Sections 7 or 8 of
this Agreement shall entitle the company to terminate this Agreement
immediately, which termination shall be conclusively deemed to be a
termination for cause, as set forth in Section 5(a) hereunder. In the event
of a violation of Sections 7 or 8 of this Agreement, any further Severance,
salary continuation, Benefits or other future compensation otherwise owed
pursuant hereto shall be forfeited, and any Severance already paid or
provided to the Employee shall likewise be forfeited and shall be
immediately returned to the Company.
The Employee acknowledges and agrees that the Company's remedies at law for
a breach of Sections 7 or 8 of this Agreement are inadequate and that the
harm caused thereby is irreparable. The Employee expressly agrees that in
the event of a violation of Sections 7 or 8 of this Agreement, the Company
shall be entitled to equitable relief enforcing the terms of this
Agreement, including without limitation, specific performance, a temporary
restraining order, preliminary injunction or permanent injunction to
prevent any breach or attempted breach thereof. The provisions of Sections
7, 8, and 9 shall survive the termination of this Agreement, in addition to
any other which may survive pursuant to the terms of this Agreement.
10. SEVERABILITY
If any provision of this Agreement including, without limitation, Sections
7, 8, or 9 hereof, is declared or found to be illegal, unenforceable, void,
overbroad, or unreasonable in scope, territory, or duration, in whole or in
part, then both parties will be relieved of all obligations arising under
such provision, but only to the extent it is illegal, unenforceable, void,
overbroad, or unreasonable in scope, territory or duration. The intent and
agreement of the parties to this Agreement is that this Agreement will be
deemed amended by modifying any such illegal, unenforceable, void,
overbroad or unreasonable provision to the extent necessary to make it
legal and enforceable while preserving its intent, or if such is not
possible, by substituting therefor another provision that is legal and
enforceable and achieves the same objectives. The foregoing
notwithstanding, if the remainder of this Agreement will not be affected by
such declaration or finding and is capable of substantial performance, then
each provision not so affected will be enforced to the extent permitted by
law.
11. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement or
Employee's employment with the Company, except for claims of violation by
the Employee of Sections 7 and 8 hereof which may be enforced by the
Company in a court of competent jurisdiction pursuant to Section 9 hereof,
shall be settled exclusively by binding arbitration before a single
arbitrator in the City of Boston, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The provisions
hereof shall be a complete bar and defense to any suit, action or
proceeding instituted by the Employee in any federal, state or local court
or before any administrative tribunal with respect to any matter which is
arbitrable as herein set forth. This Section shall survive the termination
or expiration of this Agreement. Nothing herein contained shall be deemed
to give any arbitrator any authority, power, or right to alter, change,
amend, modify, add to, or subtract from any provisions of this agreement.
The arbitrator shall have no authority to award punitive damages or
attorney's fees to any party. The decision of the arbitrator shall be final
and conclusive. Judgment on an award rendered by the arbitrator may be
entered in any court of competent jurisdiction.
12. NO CONFLICTING AGREEMENT
Employee hereby represents and warrants that neither the entry into this
Agreement nor its performance by Employee will conflict with or result in a
breach of the terms, conditions or provisions of any other agreement or
other obligation of any nature to which Employee is a party, or by which he
is otherwise bound, including, without limitation, any other employment
agreement, non-competition agreement, or confidentiality agreement.
13. GOVERNING LAW
The terms hereof shall be governed by, and construed and interpreted in
accordance with, the laws of the Commonwealth of Massachusetts, without
giving effect to its conflict of laws rules which may otherwise require the
application of the law of another jurisdiction.
14. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
Company and the Employee and their respective successors, assigns, heirs,
legal representatives, executors and administrators.
15. NOTICES
(i) All notices to the Employee shall be addressed to Employee at: or to
other such place(s) as may be designated by written notice to the
Company.
(ii) All notices to the Company shall be addressed to the Company at:
19 Fid Kennedy Avenue
Boston, MA 02210
Attn: C.E.O.
With copies to:
Walter D. Wekstein, Esq.
Gadsby & Hannah LLP
125 Summer Street
Boston, MA 02110
or to such other place(s) as may be designated by written notice to
Employee.
(iii)Notice shall be sufficient if given by hand or by certified mail,
postage prepaid, return receipt requested, addressed to the party at
its address described above. Unless
otherwise notified in writing, each party shall direct all sums
payable to the other party at its address for notice purposes.
16. HEADINGS
The captions and headings in this Agreement are for convenience and
reference only, and they shall in no way be held or deemed to define,
modify or add to the meaning, scope or intent of any provision of this
Agreement.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, written or oral on the
subject matter hereof including, but not limited to, offer letters,
employment letters, and agreements concerning severance pay.
18. AMENDMENTS
This Agreement may be modified only by written agreement signed by both the
Employee and the Company.
19. WAIVER
The failure of any part at any time to require the performance of any
provision(s) hereof shall in no manner affect the right(s) of such party at
a later time to require the performance of said provision(s), and shall not
be deemed a waiver of any obligations hereunder.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement under seal, as of the date first above written.
AU BON PAIN CO., INC.
By:/s/Ronald M. Shaich Date: December 13, 1996
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Witness:/s/Deborah L. Emery Date: December 13, 1996
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THOMAS HOWLEY
/s/Thomas R. Howley Date: January 17, 1997
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Witness:/s/Jodi L. Benedetto Date: January 17, 1997
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