EXHIBIT 10.36(A)
EMPLOYMENT AGREEMENT
AGREEMENT dated to be effective as of March 1, 1998, made and
entered into by and between Schlotzsky's, Inc., a Texas corporation (the
"Company") and John C. Wooley ("Wooley").
The Board of Directors of the Company has determined that it is in
the best interest of the Company to set forth the terms of employment of
Wooley as President of the Company and Wooley has agreed to such terms. The
Company and Wooley wish to promote their mutual best interest by setting
forth the terms and conditions in writing.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth in this Agreement, the parties agree as follows:
1. EMPLOYMENT. The Company employs Wooley and Wooley agrees to the
terms and conditions set forth in this Agreement. Wooley agrees to serve as
President and Chief Executive Officer of the Company to be responsible for
general management of the affairs of the Company, reporting directly to the
Board of Directors, and to devote good faith efforts on behalf of the Company.
2. TERM OF EMPLOYMENT. Wooley's employment with the Company shall
continue for three years from the effective date hereof, provided that such
term shall be automatically extended from year to year thereafter, unless
terminated by Wooley or the Company in accordance herewith.
3. BASE SALARY, BONUS AND OTHER COMPENSATION. The Company shall pay
to Wooley a base salary at the annual rate of $200,000 for the balance of
1998, $225,000 during 1999, $250,000 during 2000 and for each year
thereafter, unless increased by agreement between the parties. Wooley's
salary shall be payable on the same schedule that salary is paid to other
employees. Wooley shall be entitled to a cash bonus for 1998, based from
$16,666 if only one of the criteria is met, to $200,000 if all of the
criteria, calculated in accordance with the attached Exhibit A, are met.
Wooley shall also be entitled to such other bonuses and compensation as the
Compensation Committee of the Board of Directors shall approve for each year
thereafter.
4. BENEFITS. Wooley shall receive, in addition to the base salary
and the bonuses set forth in Section 3 hereof, such other benefits as are
provided by the Company to its executive officers, such as group life,
medical and disability insurance. In addition, Wooley is receiving stock
options to acquire shares of Common Stock of the Company, certain of such
options being subject to approval by the shareholders of an increase in the
number of shares issuable under the Company's stock option plan at the 1998
Annual Meeting of Shareholders.
5. WOOLEY COVENANTS.
(a) CONFIDENTIAL INFORMATION. Wooley acknowledges that the
information, observations and data obtained by him while employed by the
Company (including
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those obtained by him while employed at the Company prior to the date of this
Agreement) concerning the business or affairs of the Company ("Confidential
Information") are the property of the Company. Therefore, Wooley agrees that
he shall not disclose to any unauthorized person or use for his own account
any Confidential Information, unless and to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a result of Wooley's act or omissions to act. Wooley
shall deliver to the Company at the termination of employment, or at any
other time the Company may request, all memoranda, notes, plans, records,
reports and other documents (and copies thereof) relating to the Confidential
Information or the business of the Company which he may then possess or have
under this control.
(b) INVENTIONS AND PATENTS.
(i) Wooley agrees that all inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports,
and all similar or related information which relates to the Company's actual
or anticipated business, research and development or existing or future
products or services and which are conceived, developed or made by Wooley
while employed by the Company ("Work Product") belong to the Company. Wooley
will promptly disclose such Work Product to the Company and perform all
actions reasonably requested by the President or the Board of Directors to
establish and confirm such ownership.
(ii) Wooley is hereby advised that Section 5(b)(i) of this
Agreement regarding the Company's ownership of intellectual property does not
apply to any invention for which no equipment, supplies, facilities or trade
secret information of the Company was used and which was developed entirely
on Wooley's own time, unless (i) the invention relates to the business of the
Company or to the Company's actual or demonstrably anticipated research or
developments, or (ii) the invention results from any work performed by Wooley
of the Company.
(c) NON-COMPETE, NON-SOLICITATION
(i) Wooley acknowledges that in the course of his employment
with the Company he will become familiar, and during his employment with the
Company he has become familiar, with the Company's trade secrets and with
other confidential information concerning the Company and that his services
will be of special, unique and extraordinary value to the Company. Therefore,
Wooley agrees that, during employment and for twenty-four months thereafter,
he shall not directly or indirectly own, manage, control, participate in,
consult with, render services for, or in any manner engage in any business
competing with the business of the Company or any foreign country where the
Company is authorized to do business. For purposes of this Agreement, a
business shall be deemed competitive if it is a restaurant, sandwich shop or
food service operation offering principal menu entrees or items which are the
same or confusingly similar to those then offered at any Schlotzsky's
restaurant or outlet worldwide. Nothing herein shall prohibit Wooley from
being a passive owner of not more than 5% of the outstanding stock of any
class of a corporation which is publicly
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traded, so long as Wooley has no active participation in the business of such
corporation.
(ii) During employment Wooley shall not, except in the course of
properly dispensing his duties (i) induce or attempt to induce any employee
of the Company to leave the employ of the Company or in any way interfere
with the relationship between the Company and any employee thereof, (ii) hire
directly or through another entity any person who was an employee of the
Company at any time during employment or (iii) induce or attempt to induce
any customer, supplier, licensee or other business relation of the Company to
cease doing business with the Company or in any way interfere with the
relationship between any such customer, supplier, licensee or business
relation and the Company.
(d) FULL-TIME. Wooley agrees to devote his best efforts to the
business and affairs of the Company. Wooley shall seek written consent from
the Compensation Committee of the Board of Directors of the Company to
provide service to a third party for compensation. Consent to such activities
may be withheld in the sole judgment of the Compensation Committee. Consents
granted may be referenced in an addendum to this Agreement.
(e) ENFORCEMENT. If, at the time of enforcement of paragraphs 5(a),
(b), (c), or (d) of this Agreement, a court holds that the restrictions
stated herein are unreasonable under circumstances then existing, the parties
hereto agree that the maximum period, scope or geographical area reasonable
under such circumstances shall be substituted for the stated period, scope or
area. Because Wooley's services are unique and because Wooley has access to
Confidential Information and Work Product, the parties hereto agree that
money damages would be inadequate remedy for any breach of this Agreement.
Therefore, in the event a breach or threatened breach of this Agreement, the
Company or its successors or assigns may, in addition to other rights and
remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance or injunction or other relief in order
to enforce, or prevent any violations of, the provisions hereof.
6. TERMINATION.
(a) Wooley or the Company may terminate the employment of Wooley
for cause or without cause by giving written notice at least 60 days in
advance of the effective date of termination. For purposes of this Agreement
"for cause" means termination by the Company of the employment of Wooley upon
any of the following grounds and no others: (i) any act of dishonesty or
violation of law on the part of Wooley resulting or intended to result
directly or indirectly in personal gain or benefit at the expense of the
Company, fraud, misappropriation, embezzlement or willful and material damage
of or to property of the Company; (ii) any intentional act on the part of
Wooley preventing him from discharging his duties for a material length of
time; or (iii) a material breach of this Agreement, including willful and
habitual neglect of duties, which is not cured within ten days following
receipt of written notice.
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(b) Upon termination of Wooley's employment for any reason, he
shall be entitled to receive the base salary and any bonuses earned through
the date of termination. In addition, the Company shall continue to use good
faith efforts to remove Wooley from all guaranties in favor of the Company as
soon as practicable.
(c) Upon termination of Wooley's employment without cause, he
shall be entitled to receive the base salary and any bonuses earned through
the date of termination, plus the base salary through the end of the term
then in effect, or for one year, whichever is longer. Wooley may elect to
treat a substantial reduction in responsibilities and duties as termination
without cause. In the event of any dispute between the Company and Wooley
concerning the status of a reduction in responsibilities and duties as
"substantial," the dispute shall be submitted to an independent third party
arbitrator acceptable to the Company and Wooley for a determination which
shall be binding on both parties.
7. DISABILITY OR DEATH.
(a) If as a result of illness, injury or other disability,
Wooley is unable to perform his duties hereunder on a substantially full time
basis for any period of twelve months or more, the Company may at its option
terminate Wooley's employment hereunder and shall pay to Wooley the base
salary and any bonuses through the date of termination, plus the base salary
through the end of the term then in effect, or for one year, whichever is
longer.
(b) If Wooley shall die during the term of this employment by
the Company, the Company shall pay to Wooley's estate the base salary and any
bonuses through the date of his death, plus the base salary through the end
of the term then in effect, or for one year, whichever is longer.
8. MISCELLANEOUS. This Agreement contains the entire agreement of
the parties regarding the subject matter hereof. This Agreement may not be
changed orally but only by an agreement in writing signed by the parties
hereto. This Agreement shall be binding upon and inure to the benefit of the
parties and, to their respective successors and assigns. This Agreement shall
be construed under and enforced in accordance with the laws of the State of
Texas, and shall be performable in Travis County, Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date set forth above.
COMPANY:
SCHLOTZSKY'S, INC.
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By: /s/
--------------------------------
Its:
-------------------------------
WOOLEY:
/s/
-----------------------------------
John C. Wooley
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EXHIBIT A
1998 CEO BONUS PROGRAM
CEO's PERFORMANCE MEASURES
AND TARGET INCENTIVE OPPORTUNITIES
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THREE PLANS AND 1998 PERFORMANCE MEASURES TARGET INCENTIVE OPPORTUNITY
- ----------------------------------------------------------------- -----------------------------------------
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- - "Quality" Store Openings $33,334
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- - System-Wide Weighted Average Weekly Sales $33,333
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- - Earnings Per Share $33,333
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CEO's PLAN #1
QUALITY STORE OPENINGS
- - Two-aspects.
- Number of store openings.
- Weighted average weekly sales (new stores).
- - Target number of store openings: 150
- - Target weighted average weekly sales (new stores): $15,400
THRESHOLD, TARGET AND MAXIMUM OPPORTUNITIES
- - Threshold cash incentive $16,667
- - Target cash incentive $33,367
- - Maximum cash incentive $66,667
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CEO's PLAN #1
QUALITY STORE OPENINGS PERFORMANCE MATRIX
- - The following table summarizes the cash incentive opportunity for number of
store openings and weighted average weekly sales ("AWS").
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WEIGHTED AVERAGE WEEKLY SALES
(NEW UNITS)
- ------------------------------------------------------------------------------------------------------------
THRESHOLD* TARGET* MAXIMUM*
$14,500/UNIT $15,000/UNIT $16,324/UNIT
- --------------------------- -------------------------- -------------------------- --------------------------
MAXIMUM
170 NEW UNITS $33,334 $50,000 $66,667
- --------------------------- -------------------------- -------------------------- --------------------------
TARGET
150 NEW UNITS $25,000 $33,334 $50,000
- --------------------------- -------------------------- -------------------------- --------------------------
THRESHOLD
130 NEW UNITS $16,667 $25,000 $33,334
- ------------------------------------------------------------------------------------------------------------
- - The objective of the Plan is to achieve both the number and quality of
openings expected.
- - Reward pay-out is subject to interpolation at levels of performance between
Threshold and Maximum by reference to the cash incentive for the number of
new units and weighted average weekly sales in the foregoing table that are
closest to the actual performance without going over (the base incentive)
and determining the additional cash incentive by reference to the amounts
in the table which are nearest the base incentive. For example, if 140 units
were opened with weighted average weekly sales of $14,750/unit, the cash
incentive would be calculated as follows:
1. The base incentive is $16,667. The spread between Threshold and Target
units = 20 (150 - 130). 140 units is 10 more than the Threshold, or 50%
(10 divided by 20) of the spread. Target incentive ($25,000) less
Threshold incentive for new units ($16,667) multiplied by the percentage
of the spread is:
($25,000 - $16,667) x 50% = $4,166.50
Therefore, the additional incentive for 140 units is $4,166.50 more
than the base incentive for new units.
2. The spread between AWS Threshold and AWS Target is $500. $14,750 AWS
is $250 more than Threshold, or 50% ($250 divided by $500) of the spread.
Target incentive for AWS ($25,000) less Threshold incentive for AWS
($16,667) multiplied by the spread is ($25,000 - $16,667) x 50% =
$4,166.50. Therefore, the additional incentive for $14,750 AWS is
$4,166.50 more than the base incentive for AWS.
3. Accordingly, the bonus = $16,667 (base incentive) + $4,166.50 (new unit
additional incentive) + $4,166.50 (AWS additional incentive) = $25,000.
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CEO's PLAN #2
SYSTEM-WIDE WEIGHTED AVERAGE WEEKLY SALES
- - This Plan rewards the CEO for achieving consistent growth in system-wide
sales. The following table summarizes the incentive opportunity under this
Plan.
- ----------------------------- ------------------------------------------- -----------------------------------
LEVEL SYSTEM-WIDE PERFORMANCE/UNIT/YR. REWARD
- ----------------------------- ------------------------------------------- -----------------------------------
Threshold $9,200 $16,666
- ----------------------------- ------------------------------------------- -----------------------------------
- ----------------------------- ------------------------------------------- -----------------------------------
Target $9,800 $33,333
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- ----------------------------- ------------------------------------------- -----------------------------------
Maximum $10,400 $66,666
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- - Reward pay-out is subject to interpolation at levels of performance between
threshold and maximum by reference to the system-wide performance per unit,
per year, sales in the foregoing table which are nearest to actual
performance. Accordingly, if actual system-wide weighted average weekly
sales were $10,000 per unit, the Reward would be calculated as follows:
The spread between Target and Maximum performance is $600 ($10,400 - $9,800).
Actual performance ($10,000) less target performance ($9,800) = $200. $200
is one-third of the spread. Since the maximum Reward minus the Target Reward
is $33,333 ($66,666 - $33,333), the actual Reward is $44,444 (one-third of
$33,333 -- the difference between the maximum and the Target Reward =
$11,111; $11,111 + $33,333 = $44,444).
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CEO's PLAN #3
EARNINGS PER SHARE
- - This Plan rewards the CEO for achieving earnings per share objectives.
- ----------------------------- ------------------------------------------- -----------------------------------
LEVEL 1998 EARNINGS PER SHARE REWARD
- ----------------------------- ------------------------------------------- -----------------------------------
Threshold $1.02 $16,666
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- ----------------------------- ------------------------------------------- -----------------------------------
Target $1.05 $33,333
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- ----------------------------- ------------------------------------------- -----------------------------------
Maximum $1.10 $66,666
- ----------------------------- ------------------------------------------- -----------------------------------
- - Reward pay-out is subject to interpolation at levels of performance between
threshold and maximum by reference to the earnings per share reflected in
the foregoing table which are nearest to actual performance.
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