EXHIBIT 10.6.18
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement is made as of this 29th day
of October, 2002 by and between Paul Twohig, a Seattle, Washington resident
("Mr. Twohig") and Panera, LLC, a Delaware corporation ("the Company" and/or
"Panera").
WHEREAS, Mr. Twohig will serve in the employ of the Company as
Executive Vice President and Chief Operating Officer of the Company or as
otherwise set forth below; and
WHEREAS, Mr. Twohig and the Company desire to set forth and to
memorialize in this Agreement certain terms and obligations which will apply to
both the Company and to Mr. Twohig during his employment and subsequent
separation from the Company, including providing additional security to Mr.
Twohig and his family as an inducement to Mr. Twohig to remain with the Company
and not engage in competition with the Company;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties agree as follows:
1. EMPLOYMENT
1.1 The Company hereby agrees to employ Mr. Twohig to render
services to the Company in such executive capacity as may be designated either
generally or specifically, in writing or orally, from time to time by the
Company.
1.2 While extensive travel is expected, Mr. Twohig will be
headquartered at a Company facility to be located in Boston, Massachusetts (or
surrounding community).
1.3 Mr. Twohig hereby accepts such employment and agrees that
he will, during the continuance hereof, devote his full-time attention, best
talents and abilities to the duties of employment hereby accepted by him.
1.4 Mr. Twohig shall report to the Chief Executive Officer of
the Company and/or his designee.
2. COMPENSATION
As compensation to Mr. Twohig for his performance of the
services to be rendered hereunder and for his performance of all the additional
obligations contained herein, the Company agrees to pay Mr. Twohig and Mr.
Twohig agrees to accept the base salary, additional compensation and benefits
set forth in Attachment "A".
3. WITHHOLDINGS
All payments required to be made by the Company hereunder to
Mr. Twohig (including, but not limited, to any severance pay as set forth in
Section 9) shall be subject to the withholding of such amounts, if any, relating
to tax (including federal and state withholding, social security and other
applicable taxes) and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to applicable law or regulation or
agreement.
4. EMPLOYEE WARRANTIES
Mr. Twohig warrants that he is free to enter into the terms of
this Executive Employment Agreement ("Agreement") and that he has no obligations
inconsistent with unrestrained employment by the Company and he further
represents and warrants that his performance of all the terms of this Agreement
and as an employee of the Company does not and will not breach any agreement to
keep in confidence information acquired by him in confidence or in trust prior
to his employment by the Company. Moreover, Mr. Twohig has not entered into, and
he agrees he will not enter into, any agreement either written or oral in
conflict herewith.
5. NO ASSURANCES OF CONTINUED EMPLOYMENT
Mr. Twohig understands and agrees that nothing in this
Agreement or any discussions he has had with the Company or any of its
representatives shall be construed to give him any right or assurance of
continued employment by the Company; and that his employment relationship with
the Company is terminable at will, with or without notice, with or without
reason, by either the Company or Mr. Twohig.
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6. CONFLICTING EMPLOYMENT
Mr. Twohig agrees that during the term of his employment with
the Company he will not engage in any other employment, occupation, consulting
or other business activity related to the business in which the Company is now
involved or becomes involved during the term of his employment, nor will he
engage in any other activities that conflict with his obligations to the
Company, including, but not limited to, soliciting franchisees or potential
franchisees for personal gain and/or benefit.
Nothing contained in this Section prohibits Mr. Twohig from
participating as a shareholder provided: (i) Mr. Twohig's participation is not
as an operating partner or equivalent and (ii) Mr. Twohig's participation does
not detract from his duties and/or obligations to the Company .
In addition, Mr. Twohig states that he currently holds a
beneficial interest in Sienna Partners of less than five (5%) percent. With
regard to these holdings only, nothing contained in this Section prohibits these
holdings, provided these holdings and/or any actions taken by Mr. Twohig
relating to these holdings do not detract from his duties and obligations to the
Company. :
7. CONFIDENTIAL NATURE; PUBLIC STATEMENTS
7.1 The parties shall keep confidential the terms of this
Agreement. A breach of this confidentiality undertaking by Mr. Twohig shall
relieve the Company of any of its undertakings and obligations set forth herein.
7.2 The provisions of subsection 7.1 notwithstanding, it shall
not be deemed a violation of the duty to keep the terms hereof confidential on
the part of:
(i) Mr. Twohig, should disclosure thereof be made by
him to members of his immediate family, or to professionals consulted by Mr.
Twohig for advise regarding this Agreement, including, without limitation,
lawyers and certified public accountants; provided that any person to whom such
disclosure is authorized shall agree to be bound by the terms of paragraph 7; or
(ii) the Company, should disclosure thereof be made
by it to the Board of Directors, officers, executives, or shareholders of the
Company, or lawyers, certified public accountants and other professionals
consulted by the Company; or
(iii) either party, if disclosure shall be compelled
by applicable law or by order of either a court of competent jurisdiction or
governmental or administrative authority.
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8. CONFIDENTIAL AND PROPRIETARY INFORMATION
8.1 Mr. Twohig understands and acknowledges that in the course
of his employment with the Company, he will receive or have access to certain
"Confidential Information" (as defined below) of the Company. Mr. Twohig hereby
acknowledges that such Confidential Information constitutes a valuable and
proprietary asset of the Company which the Company desires to protect.
8.2 For purposes of this Agreement, "Confidential Information"
shall include, but not be limited to, the following: trade secrets; operating
techniques, procedures and methods; product specifications; customer lists;
account information; price lists; discount schedules; budgets, correspondence
with customers, vendors, competitors, employees, partners, franchisees or any
other entity or person; drawings; software; samples; leads from any source;
marketing techniques; procedures and methods; employee lists; internal financial
reports (including, but not limited to, internal sales and/or profit and loss
reports) of the Company and its affiliates and/or franchisees; sourcing lists;
and recruiting lists; and any other such proprietary information, but shall not
include any such information which has become generally known to or available
for use by the public other than by Mr. Twohig's act(s) or omission(s).
8.3 Mr. Twohig agrees that during the term of this Agreement
and at any time thereafter, he 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 his
own purposes or for the benefit of any other person or entity, other than the
Company, and it is expressly understood and agreed that this prohibition shall
include not using any such Confidential Information in competing with the
Company at any time.
9. SEVERANCE PAY
9.1 Upon the occurrence of a "Separation Event", as defined
below, and provided Mr. Twohig complies and continues to comply with all of his
obligations contained in this Agreement (including, but not limited to Section
11), Panera agrees to pay Mr. Twohig the following "Separation Pay":
(i) Fifty-two (52) weeks of his "Base Pay". "Base Pay" shall
mean Mr. Twohig's annualized base salary at the time of the "Separation Event"
as pre-established by the Company. Base Pay shall not include any bonus,
incentive compensation (including, but not limited to, stock options) or other
benefits or allowances which Mr. Twohig may otherwise be entitled to receive as
of the effective date of the Separation Event (except as provided below in
Section 9.1 (ii)).
(ii) Continuation of medical, dental, long term disability and
life insurance (to the extent and level that said benefits exist at the time of
the Separation Event) for the fifty-two week (52) period immediately following
the Separation Event.
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Mr. Twohig is responsible for making all required co-payments and his failure to
make said co-payments will result in the termination of said benefit. Upon the
termination of medical, dental, long term disability and/or life insurance, the
Company will, to the extent required by law, give Mr. Twohig notice of such
termination and Mr. Twohig's rights under the law.
9.2 Panera agrees that the above described Separation Pay
shall be made in substantially equal installments following Mr. Twohig's
termination and disbursement shall be on the dates on which he would have
received his regular salary payments.
9.3 The above described Separation Pay will be reduced (dollar
for dollar, or the equivalent thereof) by any compensation and/or benefits Mr.
Twohig receives and/or earns during the severance period from any source other
than Panera including, without limitation, salary, bonus(es), benefits,
consulting fees, income from self-employment, stocks, stock options, equity
rights, or otherwise. Upon the date that Mr. Twohig obtains and/or is eligible
to obtain through a new employer (without regard to whether Mr. Twohig is an
owner, employee, consultant or equivalent) medical and/or dental and/or long
term disability and/or life insurance during the fifty-two (52) week period
following the Separation Event, the benefits as provided in Section 9.1 (ii)
will terminated in their entirety. Mr. Twohig shall promptly notify Panera of
any and all such compensation and/or benefits and/or eligibility for benefits.
In the event the severance benefits then payable are less than the dollar for
dollar (or the equivalent thereof) compensation and/or benefits Mr. Twohig
receives and/or earns during the fifty-two (52) week period following the
Separation Event, he shall immediately pay the Company the difference up to the
total value of the severance benefits.
9.4 Panera shall have no obligation to pay the above
described Separation Pay or any other compensation to Mr. Twohig if:
(i) no Separation Event occurs, or
(ii) he fails to comply with the all of the
obligations contained in this Agreement.
9.5 For purposes of this Agreement, a "Separation Event" shall
mean and be limited to the termination of Mr. Twohig's employment with Panera
other than (i) by Panera for cause (as defined below), (ii) as a result of his
death or permanent disability, or (iii) by his voluntary separation of services
and employment with, or resignation from, Panera.
9.6 For purposes of this Agreement, "cause" shall include, but
is not limited to, dishonesty; conviction of a felony or other crime involving
moral turpitude; wilful misconduct; gross dereliction and/or gross neglect of
duties; a material breach of the terms of this Agreement which continues uncured
for fifteen (15) days after Panera
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has given written notice to me specifying in reasonable detail the material
breach; or conflict of interest; in each case determined in good faith by
Panera.
9.7 If Mr. Twohig shall voluntarily terminate his employment
with, or resign from, the Company he shall provide the Company at least sixty
(60) calendar days' prior written notice thereof and he will be expected to
continue to perform his duties consistent with the Company's good faith
expectations up to the date of his voluntary termination or resignation.
9.8 All severance payments required to be made by Panera
pursuant to this Agreement to Mr. Twohig shall be subject to the withholding of
such amounts, if any, relating to tax (including federal and state withholding,
social security and other applicable taxes) and other payroll deductions Panera
may reasonably determine it should withhold pursuant to applicable law or
regulation or agreement.
9.9 In addition to Mr. Twohig's other obligations contained in
this agreement, in order to receive any severance benefits as provided above, he
shall voluntarily agree to and sign at or about the time of his termination a
full and complete release in the form appended hereto as Attachment B. It is
agreed and understood that prior to the execution by Mr. Twohig of Attachment B,
the Company may modified Attachment B to comply with any changes in the law.
9.10 Upon the occurrence of a "Separation Event", the Company,
through its Chief Executive Officer and/or his designee, will consider on
mutually acceptable terms Mr. Twohig for then existing joint venture,
partnership and/or other such opportunities.
10. BENEFITS
Except as herein otherwise provided, any benefits arising out
of or connected with Mr. Twohig's employment shall cease as of the effective
date of a Separation Event or other termination of employment, as applicable.
The foregoing shall not relieve the Company of its obligations under the law
pertaining to Mr. Twohig's benefits following the effective date of a Separation
Event or other termination of employment.
11. COVENANTS NOT TO COMPETE
11.1 Mr. Twohig covenants and agrees that he will not engage
in any "Competitive Activity" (as defined below) at any time during his
employment with the Company and/or within the fifty-two (52) week period
following the date of his termination from the Company for any reason or no
reason.
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11.2 "Competitive Activity" shall include the following:
(i) directly or indirectly engaging in, being
employed by, advising, consulting in, or acting in any way as an agent for any
entity engaged, in whole or in part, in any retail food establishment (including
any restaurant or bakery) in which any of the following categories constitutes
more than twenty percent (20%) of its revenues: (i) bakery goods and breads; or
(ii) sandwiches, soups and/or salads, other than those ordered through a wait
person taking orders at a table (the term "sandwiches" shall not include
hamburgers); as well as any business (without regard to revenue) that
manufactures, wholesales and/or distributes fresh or frozen dough or bakery
products which is or may be competitive with or adverse to the Company's
business and which is within a 100 mile radius of where the Company is engaged
in business or where the Company is attempting to engage in business or where
the Company may reasonably be expected to engage in business within the 12
months immediately following his termination; or
(ii) having, or acquiring any interest in (whether as
proprietor, partner, stockholder, consultant, officer, director, or any type of
principal whatsoever) any entity engaged, in whole or in part, in any retail
food establishment (including any restaurant or bakery) in which any of the
following categories constitutes more than twenty percent (20%) of its revenues:
(i) bakery goods and breads; or (ii) sandwiches, soups and/or salads, other than
those ordered through a wait person taking orders at a table (the term
"sandwiches" shall not include hamburgers); as well as any business (without
regard to revenue) that manufactures, wholesales and/or distributes fresh or
frozen dough or bakery products which is or may be competitive with or adverse
to the Company's business and which is within a 100 mile radius of where the
Company is engaged in business or where the Company is attempting to engage in
business or where the Company may reasonably be expected to engage in business
within the 12 months immediately following his termination, except that the
direct or indirect ownership of five percent (5%) or less of the stock of a
company whose shares are listed on a national securities exchange or are quoted
on the National Association of Securities Dealers Automated Quotation System
shall not be deemed having or acquiring any such interest; or
(iii) directly or indirectly being employed by,
advising, consulting in, or acting in any way as an agent for any entity: (a)
which is a franchisee of the Company, or (b) which was a franchisee of the
Company at any time within the 12 months immediately prior to his termination
from the Company, or (c) which the Company is and/or was attempting to secure as
a franchisee at any time within the 12 months immediately prior to his
termination from the Company, or (d) which the Company may reasonably be
expected to secure as a franchisee at any time within the 12 months immediately
following his termination; or
(iv) having, or acquiring any interest in (whether
as proprietor, partner, stockholder, consultant, officer, director, or any type
of principal whatsoever) any
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entity: a) which is a franchisee of the Company, or (b) which was a franchisee
of the Company at any time within the 12 months immediately prior to his
termination from the Company, or (c) which the Company is and/or was attempting
to secure as a franchisee at any time within the 12 months immediately prior to
his termination from the Company, or (d) which the Company may reasonably be
expected to secure as a franchisee at any time within the 12 months immediately
following his termination, except that the direct or indirect ownership of five
percent (5%) or less of the stock of a company whose shares are listed on a
national securities exchange or are quoted on the National Association of
Securities Dealers Automated Quotation System shall not be deemed having or
acquiring any such interest.
11.3 Both during the term of Mr. Twohig's employment with the
Company and at any time within one hundred and four (104) week period following
his termination from the Company for any reason or no reason, Mr. Twohig hereby
agrees not to directly or indirectly solicit or otherwise attempt to induce,
influence, or encourage any employee and/or independent contractor and/or
consultant and/or supplier and/or franchisee of the Company to terminate and/or
modify in any way his/her and/or its employment or other such business
relationship with the Company.
11.4 For purposes of Section 11, references to "the Company's
business" and/or "where the Company is engaged in business" and/or "where the
Company is attempting to engage in business" and/or "where the Company may
reasonably be expected to engage in business", shall mean any and/or all current
and/or future franchisee operation(s) as well as any current and/or future
Company operation(s).
11.5 At any time Mr. Twohig may request a waiver, in whole or
in part, of Section 11 by notifying the Company in writing of his request. Upon
Mr. Twohig providing the Company with relevant information pertaining to such a
waiver request (including such written information as the Company may request
regarding the potential violation of these Covenants Not To Compete), the
Company, through the Chief Executive Officer and/or his designee, will consider
such a request.
12. RETURN OF COMPANY DOCUMENTS
When Mr. Twohig leaves the employ of the Company, he will
deliver to the Company any and all drawings, notes, memoranda, specifications,
devices, formulas, and any other documents pertaining to the Company and/or the
Company's business, including, but not limited to, computer files, together with
all copies thereof, and any other material containing or disclosing any
Confidential Information as defined in Section 8 above (collectively "such
Documents"). The above shall include any and all such Documents contained on,
for example, a home computer system. Mr. Twohig further agrees not to retain in
any way any such Documents, and he will, for example, first return such
Documents and then delete such Documents from any home computer system. Mr.
Twohig further agrees that any property situated on the Company's premises
and/or
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owned by the Company, including disks and other storage media, filing cabinets
or other work areas, is subject to inspection by the Company at any time with or
without notice.
13. INJUNCTIVE RELIEF
Mr. Twohig acknowledges that the Company's remedy at law for a
breach of Sections 7, 8, 11, and/or 12 of this Agreement would be inadequate and
he hereby expressly agrees that the Company shall be entitled to apply to any
court, having jurisdiction, for an injunction restraining him in the event of a
breach, actual or threatened, of the covenants contained in this Agreement
without the necessity of proof of actual damages. Such right shall be in
addition to any other remedies provided for herein or otherwise available at law
or equity. Mr. Twohig further waives any requirement that a bond be posted or
that irreparable damage be demonstrated as a condition to any injunctive relief.
14. NOTICES
Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified below or at such other address as
the party shall specify in writing. Such notice shall be deemed given upon
personal delivery to the appropriate address or if sent by certified or
registered mail, three (3) days after the date of mailing.
(i) All notices to Mr. Twohig shall be addressed to Paul Twohig at:
---------------------------------
---------------------------------
or to such other place(s) as he may designate by written notice to the Company.
(ii) All notices to the Company shall be addressed to the Company at:
6710 CLAYTON ROAD
ST. LOUIS, MO 63117
ATTENTION: CHIEF EXECUTIVE OFFICER
or to such other place(s) as the Company may designate by written notice to Mr.
Twohig.
15. NOTIFICATION TO NEW EMPLOYER
Mr. Twohig agrees that he will advise any prospective employer
of the covenants and restrictions of this Agreement before accepting any offer
from another employer.
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16. ARBITRATION
Any controversy or claim arising out of or relating to Mr.
Twohig's employment with the Company (including, but not limited to, applicable
state and/or federal law), this Agreement, or the breach hereof ("claims"),
except for claims which may be enforced pursuant to Section 13, shall be settled
exclusively by arbitration before a single arbitrator which shall be held 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 in any federal, state
or local court or before any administrative tribunal with respect to any matter
which is arbitrable as herein set forth. The provision of this section with
respect to arbitration 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.
17. DEATH
This Agreement and all obligations of the Company hereunder
including, but not limited to, any Severance obligation, shall terminate upon
the death of the Mr. Twohig. In the event of a termination upon the death of the
Mr. Twohig, monies or compensation owed by the Company to the him up to the date
of termination shall be paid to his estate or designee.
Nothing contained in this Section shall disqualify Mr.
Twohig's estate from receiving the benefits of any Company provided life
insurance.
18. MISCELLANEOUS
18.1 Except as limited by Section 16 above, Mr. Twohig agrees
and consents that this Agreement and any dispute arising hereunder shall be
governed by the laws of the Commonwealth of Massachusetts and its applicable
courts shall have jurisdiction over such matters; and he agrees and consents to
waive trial by jury in any action or proceeding between the parties.
18.2 No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
18.3 In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any
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respect, such invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement, this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein, and
each provision of this Agreement shall, if necessary, be deemed to be
independent of each other and each supported by valid consideration. If
moreover, any one or more of the provisions contained in this Agreement shall
for any reason be held to be excessively broad as to duration, geographical
scope, activity or subject, it shall be construed by limiting and reducing it,
so as to be enforceable to the extent compatible with the applicable law as it
shall then appear.
18.4 To the extent necessary to provide the Company with the
full and complete benefit of this Agreement, the provisions in this Agreement
and Mr. Twohig's obligations hereunder shall survive the termination of this
Agreement and shall not be affected by such termination. The provisions of this
Agreement shall also survive the assignment of this Agreement by the Company to
any successor in interest or other assignee.
18.5 This Agreement will be binding upon Mr. Twohig's heirs,
executors, administrators and other legal representatives and will be for the
benefit of the Company, its successors, and its assigns.
18.6 The captions and headings throughout 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.
18.7 This Agreement shall be deemed to have been prepared
jointly and shall not be strictly construed against either party.
18.8 The obligations set forth above in this Agreement shall
also apply to any time during which Mr. Twohig was previously employed, or may
in the future be employed, by the Company as a consultant if no other agreement
governs such period. This Agreement (including any exhibits) is the final,
complete and exclusive agreement of the parties with respect to the subject
matter hereof and supersedes and merges all prior discussions between us. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, will be effective unless in writing and signed by the
party to be charged. Any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this Agreement.
18.9 This Agreement may be executed simultaneously in any
number of counterparts, each of which when so executed and delivered shall be
deemed to be an original but all of which counterparts shall together constitute
but one agreement.
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18.10 By signing below, Mr. Twohig acknowledges receiving a
copy of this Agreement; he acknowledges and agrees that he is entering into this
Agreement voluntarily and of his own free will; and he acknowledges and agrees
that he has not been coerced or suffered any duress in order to induce him to
enter into this Agreement.
18.11 This Agreement shall be effective as of the first day of
Mr. Twohig's employment with the Company, namely January 6, 2003.
19. ATTORNEY REVIEW
Mr. Twohig acknowledges that he has been expressly advised by the
Company to review this Agreement with an attorney prior to executing it.
I, MR. TWOHIG, HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND THE
MEANING OF ITS VARIOUS TERMS AND THE CONSEQUENCES OF SIGNING THIS AGREEMENT.
I, MR. TWOHIG, HAVE BEEN GIVEN MORE THAN REASONABLE TIME TO CONSIDER
AND ACCEPT THE CONDITIONS OF THIS AGREEMENT.
IN WITNESS WHEREOF, Mr. Twohig has executed this Agreement under seal,
and the Company has caused this Agreement to be executed under seal, by a duly
authorized officer thereof, as of the date first above written.
PANERA, LLC
/s/RONALD M. SHAICH 10/29/02
------------------------------------ ---------
Ron Shaich, Chief Executive Officer Date
AGREED AND ACCEPTED
/s/PAUL TWOHIG 11/2/02
------------------------------------ ----------
Paul Twohig Date
SUBSCRIBED AND SWORN TO
before me this day of , 200
--- ------------------ -----
--------------------------------------------
Notary Public
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ATTACHMENT (A)
OUTLINE OF BASE SALARY, ADDITIONAL
COMPENSATION AND BENEFITS FOR PAUL TWOHIG
1. Mr. Twohig's annualized base salary shall be Three Hundred and
Twenty-Five Thousand dollars ($325,000.00), payable in equal bi-weekly
installments.
2. Mr. Twohig shall receive such standard employee benefits (including,
but not limited to, health insurance) as are provided Company managers.
3. Mr. Twohig is eligible for an annual bonus, beginning January 1,
2003, in the amount up to sixty percent (60%) of his annual base salary pursuant
to a "bonus plan", to be agreed upon by the parties within one hundred and
twenty (120) days of Mr. Twohig's start date. Without in any way limiting any
other eligibility requirement(s) of said "bonus plan", Mr. Twohig must be
actively employed on the payout date in order to earn and otherwise be eligible
to receive any bonus payment. The payout date shall be on the 15th of March of
the year following the year in which the bonus is calculated. For years 2003 and
2004, Mr. Twohig's bonus payment shall be no less than thirty percent (30%) of
his annual base salary, payable as outlined above. Notwithstanding, in the event
Mr. Twohig's employment is terminated for any reason other than cause in 2003,
Mr. Twohig will be paid his bonus on a prorated basis, but in no event shall the
bonus be less than thirty percent (30%) of his annual base salary, payable upon
his effective date of termination. In the event Mr. Twohig's employment is
terminated for any reason other than cause in 2004, Mr. Twohig will be paid his
bonus on a prorated basis, but in no event shall the bonus be less than fifteen
percent (15%) of his annual base salary, payable upon his effective date of
termination.
4. Mr. Twohig's annualized base salary shall be reviewed no later than
January 1, 2004 and annually thereafter.
5. Mr. Twohig shall be awarded One Hundred and Thirty Thousand
(130,000) shares of stock options as approved by the Board of Directors.
6. Mr. Twohig will be reimbursed up to the gross amount of One Hundred
and Thirty Thousand ($130,000.00) dollars, which includes any "gross up" for
applicable taxes, for reasonable and appropriate relocation expenses to
Massachusetts. This amount is subject to reasonable review and adjustment as
actual costs are calculated. In the event Mr. Twohig should leave the Company
for any reason other than termination for cause within the twelve (12) month
period immediately following his start date, Mr. Twohig will be required to
immediately refund to the Company the above relocation expenses on a basis
proportional to Mr. Twohig's employment with the Company. For example, if Mr.
Twohig resigns one (1) full month following his start date, Mr. Twohig will be
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required to refund to the Company 11/12ths of the Company's above relocation
expenses. Mr. Twohig agrees that any such refund maybe deducted from any monies
(or equivalent) owed to Mr. Twohig and Mr. Twohig agrees to execute any
document(s) to effectuate this withholding.
7. Mr. Twohig will receive a car allowance of five thousand dollars
($5,000.00) per year payable in a manner consistent with other Company managers.
The above base salary and other benefits identified in paragraphs 1
through 7 are not earned and payable if this Agreement is terminated prior to
payment of any portion of said base salary and/or other benefits.
PANERA, LLC
/s/RONALD M. SHAICH
-----------------------------------
Ron Shaich, Chief Executive Officer
AGREED AND ACCEPTED
/s/PAUL TWOHIG 11/2/02
------------------------------------ -------
Paul Twohig Date
SUBSCRIBED AND SWORN TO
before me this day of , 200
--- -------------- ---
----------------------------------------
Notary Public
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ATTACHMENT B
GENERAL RELEASE
I, Paul Twohig, of __________________, __________________, for good and
adequate consideration (including the consideration described in the attached
Agreement), do hereby release and absolutely and forever discharge Panera,
L.L.C., its owners, predecessors, successors, affiliates, assigns, officers,
employees, franchisees, insurers, attorneys, investors and agents (hereinafter
"Panera"), from any and all suits, claims, demands, debts, sums of money,
damages, interest, attorneys' fees, expenses, actions, causes of action,
judgments, accounts, promises, contracts, agreements, and any and all claims in
law or in equity, whether now known or unknown, which I ever had, now have, or
which I, my heirs, executors, administrators or assigns, hereafter can, shall or
may have against Panera arising from any events occurring from the beginning of
time to this date, including, without limitation of the foregoing generality,
all of same arising directly or indirectly out of, in connection with and/or in
any manner relating to my employment with and/or separation from Panera,
including, but expressly not limited to, any claims which I may have to recover
damages of any kind, including back pay, front pay, damages asserted for
physical and emotional injuries, or any claim to reinstatement and/or
employment, or any claims, actions, complaints or charges brought by me or on my
behalf or which could have been brought by me or on my behalf under the
Employment Retirement Income Security Act of 1974 ("ERISA"), the Americans with
Disabilities Act ("ADA"), Title VII of the Civil Rights Act, 42 U.S.C. Sections
2000(e) et seq., the Age Discrimination in Employment Act ("ADEA") or under any
other federal, state, municipal, city, town or common law.
I further waive my right to any monetary recovery should any federal,
state, or local administrative agency pursue any claim(s) on my behalf arising
out of or related in any way to my employment with the Panera and/or separation
from employment with Panera.
1. This General Release is a part of an Agreement between me and Panera
that is written in a manner which I understand and which entitles me to receive
money and other things of value to which under my employment arrangement I would
not have received apart from that Agreement.
2. By this General Release, Panera has given me written notice to
consult an attorney and I have been given the opportunity to consult with
counsel of my own choosing.
3. I have been given adequate time (including in excess of 21 days) to
consider the agreement before signing it, including this General Release.
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4. I have the right to revoke this General Release within eight (8)
days of signing it by notifying Scott G. Blair, Esq., 42 Charles Street,
Hingham, Massachusetts 02043 in writing of my intention to do so.
5. By signing this General Release, I understand that I am waiving any
rights or claims arising under ERISA, ADA, ADEA, TITLE VII or under any other
federal, state, municipal, city, town or common law.
6. Nothing contained in this General Release is intended to release the
Company from its applicable obligations contained in the attached Agreement.
I acknowledge that the execution of this General Release is my own
free, voluntary and knowing act and deed.
PANERA, LLC
/s/RONALD M. SHAICH
------------------------------------
Ron Shaich, Chief Executive Officer
AGREED AND ACCEPTED
/s/PAUL TWOHIG 11/2/02
------------------------------------------
Paul Twohig Date
SUBSCRIBED AND SWORN TO
before me this day of , 200
--- --------- --
-----------------------------------
Notary Public
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ADDENDUM
9.65 Panera may terminate my employment if, at any time during my employment, I
become disabled so that I am unable to perform the essential functions of my
employment, with reasonable accommodation, for a period of ninety (90) days in
the aggregate during any 180-day period. The determination of my disability for
purposes of this Section 9.65 shall be made by a qualified physician acceptable
to both parties. In the event that Panera and I are unable to agree upon a
qualified physician, each party shall select a qualified physician, and in the
event those two physicians are unable to agree upon a determination as to my
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 my employment is terminated pursuant to this Section 9.65, said
termination shall be deemed a "Separation Event" pursuant to Section 9.5
entitling me to "Separation Pay", provided I comply with the obligations
contained in this Agreement, including Section 9 and its subparts. In addition
to any reductions in Severance Pay provided for in Section 9.3 any Severance Pay
made pursuant to this Section 9.65 shall also be offset dollar for dollar by any
payments made in the aggregate to me under Panera's then existing Salary
Continuation and/or Long-Term Disability Plan(s).