Exhibit 10.25
BONEFISH GRILL,
INC.
Officer Employment
Agreement
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is made and entered into effective August
1, 2001, by and among JOHN W. COOPER (hereinafter referred to as
“Employee”), and BONEFISH GRILL, INC., a Florida
corporation having its principal office at 2202 N. West Shore
Boulevard, 5 th Floor, Tampa, Florida 33607 (hereinafter
referred to as the “Employer”).
W I T N E S S E T H:
This Agreement is made and entered
into under the following circumstances:
A.WHEREAS, the Employer is an
affiliate of OSI Restaurant Partners, Inc. (“OSI”);
and
B. WHEREAS, the
Employer is engaged in the business of owning and operating
restaurants known as “Bonefish Grill®” utilizing a
restaurant operating system and trademarks owned by or licensed to
the Employer; and
C. WHEREAS, the
Employer desires, on the terms and conditions stated herein, to
employ Employee as President of the Employer; and
D. WHEREAS, the
Employee desires, on the terms and conditions stated herein, to be
employed by the Employer as President.
NOW, THEREFORE, in consideration of
the foregoing recitals, and of the premises, covenants, terms and
conditions contained herein, the parties hereto agree as
follows:
1. Employment
and Term . Subject to earlier termination as provided for
in Section 8 hereof, the Employer hereby employs the
Employee, and the Employee hereby accepts employment with the
Employer as President of the Employer for a term commencing on
August 20, 2001 and expiring August 20, 2007 (“Term of
Employment”). Such Term of Employment shall be automatically
renewed for successive renewal terms of one (1) year each unless
either party elects not to renew by giving written notice to the
other party not less than sixty (60) days prior to the start of any
renewal term.
2.
Representations and
Warranties . The
Employee hereby represents and warrants to the Employer that the
Employee (i) is not subject to any written nonsolicitation or
noncompetition agreement affecting the Employee’s employment
with the Employer (other than any prior agreement with the
Employer, OSI or either of their affiliates), (ii) is not subject
to any written confidentiality or nonuse/nondisclosure agreement
affecting the Employee’s employment with the Employer (other
than any prior agreement with the Employer, OSI or either of their
affiliates), and (iii) has brought to the Employer no trade
secrets, confidential business information, documents, or other
personal property of a prior employer.
3.
Duties
. As President of the Employer, the
Employee shall:
(a) have such
management, supervisory and operational functions as are customary
to such position, and such other powers, functions and duties may
be assigned to the Employee by the Board of Directors of the
Employer or the Chief Executive Officer or Chief Operating Officer
of the Employer; and
(b) diligently,
competently, and faithfully perform all of the duties and functions
hereunder; and
(c) not create a
situation that results in termination for Cause (as that term is
defined in Section 8 hereof); and
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Inc.
President EA with renewal and
allowance 2006a
(d) devote one hundred
percent (100%) of the Employee’s full business time,
attention, energies and effort to the business affairs of the
Employer; and
(e) conduct all of his
activities in a manner so as to maintain and promote the business
and reputation of the Employer.
The Employee shall not, during the
term of this Agreement, engage in any other business activity;
provided, however, that the Employee shall be
permitted to invest the Employee’s personal assets and manage
the Employee’s personal investment portfolio in such a form
and manner as will not require any business services on
Employee’s part to any third party or conflict with the
provisions of Section 9 , Section 10 or Section
14 hereof, or conflict with any published policy of the
Employer or its affiliates, including but not limited to the
insider trading policy of the Employer or its
affiliates.
The Employee shall be responsible
for directly reporting to the Chief Executive Officer or Chief
Operating Officer of the Employer on all matters for which the
Employee is responsible.
Notwithstanding anything to the
contrary herein, the parties acknowledge and agree that the
Employee shall, during the term of this Agreement and at the
request of the Employer, also serve as an officer of any subsidiary
or affiliate of the Employer or OSI, as the Employer shall request.
In such capacity, Employee shall be responsible generally for all
aspects of such office. All terms, conditions, rights and
obligations of this Agreement shall be applicable to Employee while
serving in such office as though Employee and such subsidiary or
affiliate of the Employer or OSI had separately entered into this
Agreement, except that the Employee shall not be entitled to any
compensation, vacation, fringe benefits, automobile allowance or
other remuneration of any kind whatsoever from such subsidiary or
affiliate of the Employer or OSI.
4.
Compensation
. During the Term of Employment, the Employee
shall be entitled to an annual base salary equal to at least the
annual salary of Employee on the effective date hereof, payable in
equal biweekly installments by the Employer, to be reviewed
annually by the Employer.
5.
Vacation
. Employee shall be entitled to three (3) weeks
paid vacation (selected by Employee, but subject to the reasonable
business requirements of the Employer as determined by the Chief
Executive Officer of the Employer) during each full year during the
Term of Employment. Vacation granted but not used in any year shall
be forfeited at the end of such one-year period and may not be
carried over to any subsequent year.
6.
Fringe Benefits
. In addition to any other rights the Employee may
have hereunder, the Employee shall also be entitled to receive
those fringe benefits, including, but not limited to, complimentary
food, life insurance, medical benefits, etc. , if any, as
may be provided by the Employer to similar employees of the
Employer.
7.
Automobile Allowance;
Expenses .
(a) During
the Term of Employment, the Employer shall pay to Employee a
monthly automobile allowance in the amount of FOUR HUNDRED AND
00/100 DOLLARS ($400.00). Such automobile allowance shall be in
lieu of reimbursement by the Employer of the costs to Employee of
purchasing and maintaining an automobile, and all operational
expenses, including, without limitation, mileage, repairs,
insurance, etc., in connection therewith; provided, however, that
the Employer shall reimburse Employee for the cost of gasoline used
in conducting the Employer’s business. Employee shall, at all
times during the Term of Employment, maintain an automobile for use
in connection with the performance of Employee’s duties and
shall maintain in full force and effect, at all times, with the
Employer as additional loss payees, at least TWO HUNDRED FIFTY
THOUSAND AND 00/100 DOLLARS ($250,000.00) in property damage and
FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00)
in personal liability automobile insurance, with an additional
ONE
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Inc.
President EA with renewal and
allowance 2006a
MILLION DOLLARS ($1,000,000.00) personal
liability umbrella. Such insurance shall be written with an
insurance carrier reasonably acceptable to the Employer and shall
provide that such insurance cannot be changed, cancelled or
permitted to expire without at least ten (10) days prior written
notice to the Employer.
(b) Subject
to approval by the Chief Financial Officer of the Employer and
compliance with the Employer’s policies, the Employee may
incur reasonable expenses on behalf of and in furtherance of the
business of the Employer. Upon approval of such expenses by the
Chief Financial Officer, the Employer shall promptly reimburse the
Employee for all such expenses upon presentation by the Employee,
from time to time, of appropriate receipts or vouchers for such
expenses that are sufficient in form and substance to satisfy all
federal tax requirements for the deductibility of such expenses by
the Employer.
8.
Termination . Notwithstanding the provisions of
Section 1 hereof, the Term of Employment shall terminate
prior to the end of the period of time specified in Section
1 , immediately upon:
(a) The death of the
Employee; or
(b) The
Employee’s Disability during the Term of Employment. For
purposes of this Agreement, the term “Disability” shall
mean the inability of the Employee, arising out of any medically
determinable physical or mental impairment, to perform the services
required of the Employee hereunder for a period of ninety (90)
consecutive days; or
(c) The existence of
Cause. For purposes of this Agreement, the term “Cause”
shall be defined as:
(i) Any
dishonesty by the Employee in the Employee’s dealings with
the Employer, the commission of fraud by the Employee, negligence
in the performance of the duties of the Employee, insubordination,
willful misconduct, or the conviction (or plea of guilty or nolo
contendere) of the Employee of any felony, or any other crime
involving dishonesty or moral turpitude; or
(ii) Any
violation of any covenant or restriction contained in Section 9,
Section 10, Section 12 or Section 14 hereof;
or
(iii) Any
violation of any material published policy of the Employer or its
affiliates (material published policies include, but are not
limited to, the Employer’s discrimination and harassment
policy, management duty policy, responsible alcohol policy and
insider trading policy);
(d) At the election of
the Employer, upon the sale of a majority ownership interest in the
Employer or substantially all of the assets of the Employer;
or
(e) At the election of
the Employer, upon the determination by the Employer to cease the
Employer’s business operations; or
(f) At the election of
the Employer in its sole discretion, for any reason or no reason.
In the event of termination of this Agreement pursuant to this
Section 8(f) , the Employee shall be entitled to receive as
full and complete severance compensation, the base salary provided
for herein for a period of
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allowance 2006a
one (1) year from the effective date of such
termination (the “Severance”). Severance shall be
payable in bi-weekly installments. The Employee acknowledges and
agrees that in the event of termination of this Agreement pursuant
to this Section 8(f) the Severance provided in this
Section 8(f) shall be the only obligation that the Employer,
OSI or any of their affiliates shall have to the Employee. Employee
acknowledges that in the event of termination of Employee’s
employment as President of the Employer, whether pursuant to this
Section 8(f) or otherwise, any Long Term Incentive Agreement
(“LTIA”) with the Employer or any of its affiliates
shall terminate immediately and the Employee shall not be entitled
to any further payments under such LTIA.
For all purposes of this Agreement,
termination for Cause shall be deemed to have occurred in the event
of the Employee’s resignation when, because of existing facts
and circumstances, subsequent termination for Cause can be
reasonably foreseen.
Except as otherwise provided in
Section 8(f) , in the event of termination of this Agreement
pursuant to this Section 8 , the Employee or the
Employee’s estate, as appropriate, shall be entitled to
receive (in addition to any fringe benefits payable upon death in
the case of the Employee’s death) the base salary provided
for herein up to and including the effective date of termination,
prorated on a daily basis.
The Employee acknowledges and agrees
that in the event of termination of Employee’s employment as
President of the Employer, with or without Cause, any LTIA between
the Employee and the Employer or any of its affiliates shall
terminate immediately and the Employee shall not be entitled to any
further payments under such LTIA.
(a) During Term
. During the Employee’s employment with the Employer, the
Employee shall not, individually or jointly with others, directly
or indirectly, whether for the Employee’s own account or for
that of any other person or entity, engage in or own or hold any
ownership interest in any person or entity engaged in a restaurant
business, and the Employee shall not act as an officer, director,
employee, partner, independent contractor, consultant, principal,
agent, proprietor, or in any other capacity for, nor lend any
assistance (financial or otherwise) or cooperation to any such
person or entity.
(b) Post Term
. For a continuous period of two (2) years commencing on
termination of the Employee’s employment with the Employer,
regardless of any termination pursuant to Section 8 or any
voluntary termination or resignation by the Employee, the Employee
shall not, individually or jointly with others, directly or
indirectly, whether for the Employee’s own account or for
that of any other person or entity, engage in or own or hold any
ownership interest in, have any interest in or lend any assistance
to, any seafood restaurant or any person or entity engaged in a
business owning, operating, franchising or controlling a seafood
restaurant business, and that is located or intended to be located
anywhere within a radius of thirty (30) miles of any Bonefish
Grill® restaurant owned or operated by the Employer, the
Company or their affiliates or any proposed Bonefish Grill®
restaurant to be owned or operated by any of the foregoing, and the
Employee shall not act as an officer, director, employee, partner,
independent contractor, consultant, principal, agent, proprietor,
chef, or in any other capacity for, nor lend any assistance
(financial or otherwise) or cooperation to, any such person, or
entity. For purposes of this Section 9(b) , Bonefish
Grill® restaurants owned or operated by the Company shall
include Bonefish Grill® restaurants operated or owned by an
affiliate of the Company, any successor entity to the Company, and
any entity in which the Company h
