EXHIBIT 10.6.5
MARK BORLAND - ABP
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT is made this day of January, 1996 by and between
Au Bon Pain Co., Inc., a corporation organized under the laws of the State
of Delaware (the "Corporation"), and MARK BORLAND, an individual residing at
284 Center Street, Pembroke, Massachusetts 02359 (the "Employee").
WITNESSETH THAT:
WHEREAS, the Corporation currently employs the Employee; and
WHEREAS, the Corporation and the Employee wish to defer immediate
payment of some compensation as it otherwise would accrue and be payable to the
Employee; and
WHEREAS, the Corporation will retain such accrued but unpaid amounts
for the benefit of the Employee, subject to the claims of the Corporation's
creditors in the event of the Corporation's insolvency; and
WHEREAS, it is the intention of the parties that this Agreement shall
constitute an unfunded arrangement maintained for the purpose of providing
deferred compensation to the Employee as a member of the management of the
Corporation for purposes of Title I of the Employee Retirement Income Security
Act of 1974.
NOW, THEREFORE, in consideration of the agreements hereinafter
contained, the parties hereby agree as follows:
1. WITHHOLDING. During the term of the Corporation's employment of
the Employee after the date hereof, the Corporation shall withhold from
compensation otherwise accrued and payable to the Employee the sum of $18,370.00
per annum, to be accrued and retained ratably on a weekly basis. In addition,
during the term of the Corporation's employment of the Employee for one year
after the date hereof, the Corporation shall accrue and withhold an additional
amount of $25,000.00, to be accrued and retained ratably on a weekly basis
during such one year term.
2. DEFERRED COMPENSATION ACCOUNT.
(a) The Corporation shall credit the amounts described in the
preceding paragraph to a book reserve (the "Deferred Compensation Account")
established for this purpose.
(b) All funds credited to the Deferred Compensation Account may be
kept in cash or invested and reinvested in mutual funds, stocks, bonds,
securities or any other assets as may be selected by the Corporation in its
discretion until the
Employee provides to the Corporation written direction of investment. The
Employee may provide such written direction no more frequently than
quarter-annually; provided, however, that the Employee may not direct the
Corporation to invest Deferred Compensation Account amounts in the debt or
equity of the Corporation or in any assets in which the Corporation, in the
opinion of counsel, reasonably may not invest. In the exercise of the foregoing
discretionary investment powers, the Corporation may engage investment counsel
and, if it so desires, may delegate to such counsel full or limited authority to
select the assets in which the Deferred Compensation Account funds are to be
invested.
(c) All appreciation, depreciation, income, loss and expenses on
the Deferred Compensation Account shall increase or decrease, as appropriate,
such Deferred Compensation Account. The Corporation shall account at least
annually to the Employee to reflect all activity in the Deferred Compensation
Account for the preceding period.
(d) The Employee assumes all risk in connection with any
investment of the Deferred Compensation Account.
(e) Title to and beneficial ownership of all assets held in the
Deferred Compensation Account shall at all times remain in the Corporation and
the Employee shall not have any property interest whatsoever in the Deferred
Compensation Account.
3. PAYMENT OF DEFERRED AMOUNTS. The Corporation shall pay the
following benefits as deferred compensation to the Employee (unless they are
forfeited by the occurrence of any of the events of forfeiture specified in
paragraph 3(b) below) as follows:
(a) If the Employee's employment with the Corporation is
terminated for any reason on or after the Employee shall have reached the age of
sixty (60), the Corporation shall pay to him in a lump sum or in ten (10) annual
installments an amount equal to the fair market value of the assets in the
Deferred Compensation Account as of such date. The method of payment shall be
determined by the Employee by written direction to the Corporation at the time
of such termination and, absent such written direction, the Corporation shall
pay such amount in a lump sum. If the Employee directs the Corporation to pay
such amount over ten (10) annual installments, the total amount payable to the
Employee shall be appropriately increased or decreased, as the case may be, to
reflect the appreciation or depreciation in value and the net income or loss and
expenses on the funds which remain invested in the Deferred Compensation
Account. The above notwithstanding, if the Employee should die on or after his
sixtieth (60) birthday and before all payments are made hereunder, the unpaid
balance will continue to be paid in
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installments for the unexpired portion of such ten year period to his designated
beneficiary (as described below) in the same manner as set forth above.
(b) If the Employee's employment with the Corporation is
terminated for any reason other than death and disability but before the
Employee shall have reached the age of sixty (60), the Corporation shall pay the
fair market value of the assets in the Deferred Compensation Account as of such
date or dates as provided in paragraph (a) above or at such earlier date or
dates as shall be selected by the Corporation in its sole discretion, unless the
Employee terminates his employment with the Corporation without providing at
least six months prior notice of such termination, in which event all rights of
the Employee and his successors and assigns (including his personal
representatives) to receive payments hereunder shall be forfeited.
(c) If the Employee's employment with the Corporation is
terminated because of death or disability before he has reached the age of sixty
(60), the Corporation shall make payments to the Employee (in the event of his
disability) or his designated beneficiary (in the event of his death) in the
same manner and to the same extent as provided in paragraph 3(a), above.
(d) The designated beneficiary may be designated or changed by the
Employee (without the consent of any prior beneficiary) by written direction
delivered to the Corporation at any time before the death of the Employee.
(e) If both the Employee and his designated beneficiary should die
before all payments due under this Agreement are made by the Corporation, then
the remaining value of the Deferred Compensation Account shall be determined and
shall be paid as promptly as possible in a lump sum to the estate of such
designated beneficiary if such designated beneficiary had survived the Employee.
If no such beneficiary shall have been designated upon the death of the
Employee, or if the designated beneficiary does not survive the Employee, then
the remaining value of the Deferred Compensation Account shall be determined and
shall be paid as promptly as possible in a lump sum to the estate of the
Employee.
(f) For the purpose of this Agreement, the term "Cause" shall mean
the conviction of the Employee of a crime involving fraud or moral turpitude
involving the Corporation. For purposes of this Agreement, the term "disability"
shall mean that, as a result of the Employee's incapacity due to physical or
mental illness, the Employee is unable substantially to perform his employment
duties on a full-time basis for one hundred eighty (180) consecutive days or one
hundred eighty (180) days in the aggregate in any consecutive two hundred
seventy (270) day period.
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(g) Installment payments to be made to the Employee under
paragraphs 3(a) and 3(c) above shall commence on the first day of the month next
following the date of the termination of his employment, and the installment
payments to be made to the Employee under paragraph 3(b) above shall commence on
the first day of the month next following the date on which the Employee shall
have reached the age of sixty (60) unless the Corporation selects an earlier
date or dates in its sole discretion. The installment payments to be made to the
designated beneficiary under the provisions of this paragraph 3 shall commence
on a date to be selected by the Corporation but within six months from the date
of death of the Employee.
4. NO TRUST CREATED. Nothing contained in this Agreement and no
action taken pursuant to the provisions of this Agreement shall create or be
construed to create a trust of any kind or a fiduciary relationship between the
Corporation and the Employee, his designated beneficiary or any other person.
Any funds which may be invested under the provisions of this Agreement shall
continue for all purposes to be a part of the general funds of the Corporation
and no person other than the Corporation shall, by virtue of the provisions of
this Agreement, have any interest in such funds. To the extent that any person
acquires a right to receive payments from the Corporation under this Agreement,
such rights shall be no greater than the right of any unsecured general creditor
of the Corporation.
5. NO ASSIGNMENT. The right of the Employee or any other person to
the payment of deferred compensation or other benefits under this Agreement may
not be assigned, transferred, pledged or encumbered except by the Employee's
designation of a designated beneficiary, by will or by the laws of descent and
distribution.
6. NO EMPLOYMENT ASSURANCE. Nothing contained herein shall be
construed as conferring upon the Employee the right to continue in the
employment of the Corporation as an executive or in any other capacity.
7. PAYMENT IN KIND: WITHHOLDING. The Corporation may pay amounts due
hereunder in cash or in kind as it may choose in its sole discretion. The
Corporation will withhold all necessary taxes from such amounts.
8. SEVERABILITY. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, 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 or void. The intent and
agreement of the parties to this Agreement is that this Agreement will be deemed
amended by modifying any such illegal, unenforceable or void provision to the
extent
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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.
9. WAIVER. Any delay or omission by either party to this Agreement
in exercising any right or power under the Agreement will not impair such right
or power or be construed as a waiver thereof. A waiver by either party to this
Agreement of any of the covenants to be performed by the other or any breach
thereof will not be construed to be a waiver of any succeeding breach thereof or
of any other covenant contained in this Agreement. All remedies provided for in
this Agreement will be cumulative and in addition to and not in lieu of any
other remedies available to either party at law, in equity, or otherwise.
10. GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the Commonwealth of Massachusetts
applicable to contracts made and to be performed therein and without giving
effect to any principle of conflict-of-laws that would require the application
of the law of any other jurisdiction.
11. NOTICES. Any notice to a party hereto shall be in writing, and such
notice shall be given by delivery in hand; by telecopy (if available) with
original posted first class mail, postage prepaid, within two (2) business days
thereafter; by certified mail, postage prepaid, return receipt requested; or by
private courier requesting evidence of receipt as a part of its service,
addressed as follows:
If to the Company:
19 Fid Kennedy Avenue
Boston, MA 02210
Attn: Chief Executive Officer
with a copy to:
Robert J. Foley, Esq.
Gadsby & Hannah LLP
125 Summer Street
Boston, MA 02110
If to the Employee:
284 Center Street
Pembroke, MA 02359
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or to such other address as may be designated in writing by either party from
time to time in accordance herewith, and shall be deemed delivered upon the
earliest to occur of delivery by hand, when so telecopied, when so placed in the
mails or when so delivered to such delivery service as aforesaid.
12. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement; or the breach thereof, shall be settled by arbitration in
Boston, Massachusetts in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
13. ENTIRE AGREEMENT: AMENDMENT. This Agreement constitutes the entire
agreement between the parties to this Agreement with respect to the subject
matter of this Agreement and there are no understandings or agreements relative
to this Agreement which are not fully expressed in this Agreement. All prior
agreements with respect to the subject matter of this Agreement are expressly
superseded by this Agreement. No amendment to, or waiver or discharge of, this
Agreement will be valid unless in writing and signed by the party to be charged.
14. DESCRIPTIVE HEADINGS. All descriptive headings of this Agreement
are inserted for convenience only, and shall not affect the construction or
interpretation hereof.
15. POWER TO INTERPRET. The Corporation shall have full power and
authority to interpret, construe, and administer this Agreement and the
Corporation's reasonable interpretations and construction thereof, and actions
thereunder, including any valuation of the Deferred Compensation Account, or the
amount or recipient of the payments to be made therefrom, shall be binding and
conclusive on all persons for all purposes. Neither the Corporation nor any
director, officer, employee or agent of the Corporation shall be liable to any
person for any action taken or omitted in connection with the interpretation and
administration of this Agreement unless attributable to willful misconduct or
lack of good faith.
16. BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the Corporation, its successors and assigns, and the Employee
and his designated beneficiaries, heirs, executors, administrators, and legal
representatives.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed by its duly authorized employee and Employee has hereunto set his hand
and seal as of the date first above written.
AU BON PAIN CO., INC.
By: /s/ Mariel Clark
----------------------------
Mariel Clark, Vice President
/s/ Mark Borland
----------------------------
MARK BORLAND
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EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made this 27th day
of August, 1997, by and between Mark Borland ("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 I 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 made 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 and an additional lump sum payment of $18,370.00.
Severance is payable, commencing after the last day of active employment with
the Company, 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, consistent with the typical duties and
responsibilities of an Executive Vice President with the Company, and to
maintain the Employee's title as Executive Vice President. Employee understands
and agrees that Employee's duties and responsibilities may change from time to
time, in the sole discretion of the Company. 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 $175,950.00
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
thirty (30) days prior to its expiration. In the event the Employee gives notice
of intent not to renew this Agreement, the Employee shall not be entitled to
Severance. In the event the Company gives notice of intent not to renew this
Agreement, at the expiration of the Agreement the Employee shall be entitled to
fifty-two (52) weeks' 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
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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 fifty-two (52)
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, or
upon such shorter period of notice as the parties may agree in writing. 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
event those two physicians are unable to agree upon a determination as to the
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 fifty-two (52) 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.
(f) ACCRUED VACATION
All accrued vacation owed by the Company to the Employee upon
termination of employment shall be included in the Employee's last paycheck
following active employment.
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/her immediate family, bankers, accountants, attorneys, and
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other financial advisers, the Internal Revenue Service, the Massachusetts
Department of Revenue, in the event such disclosure is necessary to prospective
employers or others to review the restrictive covenants contained herein, in the
event of 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"),
but shall not include any information which is commonly known or in the public
domain.
(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 (i) six (6) months after
its termination with respect to Section 8(a), and (ii) one (1) year after its
termination with respect to Section 8(b), 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) during the term of this Agreement, and for six (6) months after
its termination, for whatever reason, 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: PARADISE BAKERY, INC.; STARBUCKS;
BRUEGGER'S BAGEL BAKERY; FINAGLE-A-BAGEL; LE BOULANGERIE, GREAT HARVEST,
EINSTEIN'S/NOAH'S; CORNER BAKERY; BIG SKY; AFC ENTERPRISES, INC. 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 50% of its revenues from
the retail sales of baked
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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 any 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.
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 broach thereof. The provisions of Sections 7, 8 and 9 shall survive
the termination of this Agreement, in addition to any others 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 provisions, 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
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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 AGREEMENTS
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 such other 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
Attention: C. E. 0.
With copies to:
Walter D. Wekstein, Esq.
Gadsby & Hannah LLP
225 Franklin Street
Boston, MA 02110
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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, with the exception of the
Deferred Compensation Agreement between the parties dated January, 1996, a copy
of which is attached hereto as Exhibit "A", which shall remain in force until
terminated pursuant to its terms.
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 party 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.
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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: 8/27/97
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Ronald M. Shaich,
Chief Executive Officer
Witness: /s/ Mariel Clark Date: 8/27/97
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MARK BORLAND
/s/ Mark C. Borland Date: 9/16/97
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Witness: Date:
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