EXHIBIT 10.27
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made this
1st day of October, 1997, by and between Paul MacPhail ("Employee") and Uno
Restaurant Corporation, a Delaware corporation with a principal place of
business in West Roxbury, 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. EMPLOYMENT
The Company agrees to employ the Employee to render services to the
Company in an executive capacity. Effective as of the date hereof, Employee
hereby accepts such employment subject to the terms and conditions set forth
herein. Employee agrees to devote his full attention, best talents and abilities
to the job and to perform faithfully his duties and responsibilities hereunder.
2. TITLE & DUTIES
Employee shall serve as Senior Vice President - Operations of Uno
Restaurant Corporation and shall do and perform all duties and services
necessary and advisable to assist in the management and conduct of the business
of employer, subject always to the policies as set forth by the Board of
Directors.
Employee shall be responsible for the duties and responsibilities
described in the attached job description. Employee has reviewed and concurs
with his responsibilities and duties.
Employee shall devote his entire productive time, ability and attention
to the business of Employer during the term of this contract. Employee shall not
directly or indirectly render any service of a business, commercial or
professional nature, to any other person or organization, whether for
compensation or otherwise, without the prior written consent of the
President/CEO of UNO except that Employee shall not be precluded from
involvement in charitable or civic activities or his personal financial
investments provided the same do not interfere with his time
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or attention to the business of Employer. Such consent will not be unreasonably
withheld.
3. TERM OF EMPLOYMENT
Employer hereby employs the Employee and Employee hereby agrees to be
employed by UNO for a period of one year commencing on the 1st day of October,
1997 (the "Anniversary Date"), and terminating on the 30th day of September,
1998. This Agreement may be terminated earlier as hereinafter provided.
Otherwise, 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 thirteen (13) weeks 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 Salary Protection. 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 of Salary
Protection as defined in 4 (b).
4. 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.
(iv) Employee's breach of his (her) fiduciary duty to the company.
Upon the occurrence of any of the above, at Employer' sole option,
Employee's employment shall immediately cease and terminate and Employer shall
be under no obligation to Employee except to pay him for such services as may
have been performed up to the date of such termination, including any vacation
time that may have accrued and is owing.
(b) TERMINATION WITHOUT CAUSE
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Notwithstanding any other provision of the Agreement, the Company may
terminate Employee's employment, without cause, at any time, for any reason. In
the event of a termination without cause, the Employee shall be entitled to
Salary Protection for a period of fifty-two (52) weeks. Salary Protection is
defined as base salary, health/dental/life insurance, and company car. Salary
Protection shall cease the earlier to occur of (1) commencement of new
employment or (2) 52 weeks. Insurance benefits cease at such time that the
Employee is eligible to enter another plan. Salary benefits also cease except to
the extent that the Employee's new salary is less than the salary previously
provided by the company. In the event a shortfall exists, the company will pay
the differential during the duration of the Salary Protection period. In
addition, if the Employee incurs unreimbursed and documented relocation expenses
directly attributed to new employment, the company will reimburse to the extent
that the aggregate of all payments do not exceed fifty-two (52) weeks of base
salary. In consideration of the aforementioned, employee agrees to a general
release of any possible employment - related claims.
(c) RESIGNATION
The Employee may at any time during the term of the Agreement resign
employment, effective, upon at least (30) days' written notice to the Company.
Upon such resignation, the Employee shall not be entitled to any Salary
Protection, 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 thirty-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' Salary Protection. Such
Salary Protection 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) RELOCATION OF EMPLOYEE
Should the Company require the Employee's place of work to be relocated
outside of the
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Greater Boston area, the Employee may elect to terminate his
employment with the Company, upon thirty (30) days' written notice to the
Company, and the Employee shall be entitled upon such termination to fifty-two
(52) weeks' Salary Protection.
(f) 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.
(g) CHANGE-OF-CONTROL
In the event of a change-of-control, the Company's Change of Control
Protection agreement shall become active and this agreement shall be
automatically voided by both parties.
5 COMPENSATION & BENEFITS
(a) BASE SALARY - For services rendered by Employee to the Company,
Employee shall be paid an annual base salary of $130,000, payable according to
the Company's usual payroll practices. Employee's base salary shall be subject
to annual review as determined by the Employer's Chief Executive Officer, but in
no event shall the annual salary be lower than the previous year's base salary.
(b) BONUS - In Employee's capacity as a Senior Vice President, Employee
will participate in the Company's Management Incentive Plan. While no payments
are guaranteed under this plan, it is understood that Employee will participate
in the same plan and under the same conditions and guidelines as all other
Senior Vice Presidents.
(c) COMPANY VEHICLE - Employee will be entitled to the use of a late
model Company owned or leased automobile as well as insurance, gasoline, and
vehicle maintenance costs related to said vehicle as described in the Company's
Vehicle Policy.
(d) BENEFITS & PERQUISITES - Employee will participate in the standard
group of Benefits plans available to all Senior Vice Presidents. These plans
currently include Health Insurance, Dental Insurance, Executive Supplemental
Health/ Dental Insurance, Life Insurance, Short & Long Term Disability
Insurance, Accidental Death & Dismemberment Insurance, 401K Plan, Deferred
Compensation Plan, Complimentary and Competitive Dining Privileges, Business
Travel Insurance, Paid Vacations, and Paid Holidays. It is understood that new
plans may be added and existing plans modified or discontinued.
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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 other
financial advisers, the Internal Revenue Service, the Massachusetts Department
of Revenue, in the event that disclosure is necessary in litigation or
arbitration involving this Agreement, or in the event that such disclosures
shall be compelled by law.
7. CONFIDENTIAL AND PROPRIETARY INFORMATION
(a) The Employee understands and acknowledges that in the course of
employment with the Company, Employee will have access to confidential and
proprietary information of the Company and its Affiliates which 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; recipes; customer lists; account
information; price list; discount schedules; correspondence with customers,
vendors, employees, partners or others; drawings; software; marketing
techniques; employee lists; internal financial reports of the Company and its
Affiliates; sourcing lists; and recruiting lists (collectively, "confidential
Information").
(b) The Employee agrees that during the term of the Agreement and at
any time thereafter, Employee will not, without the prior written 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 purpose or for the benefit of any other person or
entity, other than the Company and its Affiliates.
(c) The Employee agrees that upon the request of the Company or upon
termination of employment, Employee shall return to the Company all documents or
other materials, including electronic or computerized data, containing or
relating to Confidential Information, along with all other Company property.
8. RESTRICTIVE COVENANT
During the term of this Agreement, and for one (1) year after its
termination, for whatever reason, the Employee shall not, directly or
indirectly, either as an individual, employee, partner, officer, owner,
director, shareholder, advisor or consultant, or in any other capacity
whatsoever, on behalf of any person, firm, corporation, partnership or entity:
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(a) be employed by or retained as a consultant or advisor to a
competitive entity. For purposes of this Agreement, "competitive entity"
includes the following companies doing business as: Bertucci's, Back Bay, Pizza
Hut, Papa Johns, California Pizza Kitchen, Numero Uno, Ground Round and their
respective parents, subsidiaries, franchisees, affiliates, successors or
assigns. The company reserves the right to make reasonable additions to the
above list of competitors with prior written notice to employee. 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.
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 4 (a) hereunder. In the event of a violation
of Sections 7 or 8 of this Agreement, any further Severance, salary
continuation, Benefits or other future compensation otherwise owed pursuant
hereto shall be forfeited, and any Severance already paid or provided to the
Employee shall likewise be forfeited and shall be considered a debt due and
owing and shall be immediately returned to the Company.
The Employee acknowledges and agrees that the Company's remedies at law
for a breach of Sections 7 or 8 of this Agreement are inadequate and that the
harm caused thereby is irreparable. The Employee expressly agrees that in the
event of a violation of Sections 7 or 8 of this Agreement, the Company shall be
entitled to equitable relief enforcing the terms of this Agreement, including
without limitation, specific performance, a temporary restraining order,
preliminary injunction or permanent injunction to prevent any breach or
attempted breach thereof. The provisions of Sections 7, 8 and 9 shall survive
the termination of this Agreement, in addition to any 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 provision, but only to the extent it is illegal, unenforceable, void,
overbroad, or unreasonable in scope, territory or duration. The intent and
agreement of the parties to this Agreement is that this Agreement will be deemed
amended by modifying any such illegal, unenforceable, void, overbroad or
unreasonable provision to the extent necessary to make it legal and enforceable
while preserving its intent, or if such is not possible, by substituting
therefor another provision that is legal and enforceable and achieves the same
objectives. The
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foregoing notwithstanding, if the remainder of the Agreementwill 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 the Agreement or
Employee's employment with the Company, except for claims of violation by the
Employee of Sections 7 and 8 hereof which may be enforced by the Company in a
court of competent jurisdiction pursuant to Section 9 hereof, shall be settled
exclusively by binding arbitration before a single arbitrator in the City of
Boston, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The provisions hereof shall be a complete bar and
defense to any suit, action or proceeding instituted by the Employee in any
federal, state or local court or before any administrative tribunal with respect
to any matter which is arbitrable as herein set forth. This Section shall
survive the termination or expiration of the 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. Judgement on an award rendered by the arbitrator may be entered in
any court of competent jurisdiction.
12. 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.
13. 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.
14. 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:
Specify to what position i.e. President, etc.
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With copies to:
General Counsel
Uno Restaurant Corporation
100 Charles Park Road
West Roxbury, MA 02132
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.
15. 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.
16. 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 or stock options.
17. AMENDMENTS
This Agreement may be modified only by written agreement signed by both
the Employee and the Company.
18. 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 the Agreement have executed this
Agreement under seal, as of the date first above written.
Uno Restaurant Corporation
By: /s/ CRAIG S. MILLER Date:
---------------------------- ----------------------------
Craig S. Miller, President & CEO
Witness: /s/ THOMAS W. GATHERS Date:
---------------------------- ----------------------------
EMPLOYEE
/s/ PAUL MACPHAIL Date:
---------------------------- ----------------------------
Witness: /s/ THOMAS W. GATHERS Date:
----------------------- ----------------------------
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Pursuant to the Executive Employment Agreement dated October 1, 1997 between
Paul W. MacPhail and Uno Restaurant Corporation, Section 8(a), RESTRICTIVE
COVENANT, is hereby amended to include RARE Hospitality Intl. Inc. This change
is effective November 23, 1998.
Uno Restaurant Corporation
By: CRAIG S. MILLER Date:
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Craig S. Miller, President & CEO
EMPLOYEE
/s/ PAUL MACPHAIL 12/10/98
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