Exhibit 10.7
Senior Vice President Level
PANERA, LLC
CONFIDENTIAL AND PROPRIETARY INFORMATION
AND NON-COMPETITION AGREEMENT
I, “FirstName»
«LastName» , in consideration of the offer of
employment to me by Panera, LLC (“Panera” and/or
“Company”) or to continue employment with Panera, as
the case may be, and the compensation and other consideration that
may hereafter be paid to me, agree to the following:
1. EMPLOYEE
WARRANTIES
I
warrant that I am free to enter into the terms of this Panera,
LLC Confidential And Proprietary Information And Non-Competition
Agreement (“Agreement”) and that I have no
obligations inconsistent with unrestrained employment by Panera and
I further represent and warrant that my performance of all the
terms of this Agreement and as an employee of Panera does not and
will not breach any agreement to keep in confidence information
acquired by me in confidence or in trust prior to my employment by
Panera. Moreover, I have not entered into, and I agree I will not
enter into, any agreement either written or oral in conflict
herewith.
I agree to: (i) devote my entire
business time, attention, and energies to the business of Panera
and its operation, (ii) faithfully and competently perform all
duties in connection with my employment, and (iii) comply with
Panera’s policies and procedures including, without
limitation, its Standards of Business Conduct.
2. NO ASSURANCES
OF CONTINUED EMPLOYMENT
I
understand and agree that nothing in this Agreement or any
discussions I have had with Panera or any of its representatives
shall be construed to give me any right or assurance of continued
employment by Panera; and that my employment relationship with
Panera is terminable at will, with or without notice, with or
without reason, by either Panera or me.
3. CONFLICTING
EMPLOYMENT
I agree
that during the term of my employment with Panera I will not engage
in any other employment, occupation, consulting or other business
activity related to the business in which Panera is now involved or
becomes involved during the term of my employment, nor will I
engage in any other activities that conflict with my obligations to
Panera, including, but not limited to, soliciting franchisees or
potential franchisees for personal gain and/or benefit.
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4. CONFIDENTIAL
NATURE; PUBLIC STATEMENTS
4.1 I shall keep confidential the terms of this Agreement
except to the extent such terms become known or available to the
public other then by my acts or omissions in breach of this
Agreement. A breach of this confidentiality undertaking shall
relieve the Company of any of its undertakings and obligations set
forth herein.
4.2 The provisions of Subsection 4.1 notwithstanding, it
shall not be deemed a violation of my duty to keep the terms hereof
confidential should:
(i) disclosure
be compelled by applicable law or by order of either a court of
competent jurisdiction or governmental or administrative
authority.
(ii) disclosure
of this Agreement be made by me to members of my immediate family,
or to professionals consulted by me 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
Section 4.
5. CONFIDENTIAL
AND PROPRIETARY INFORMATION
5.1 I understand and acknowledge that in the course of my
employment, I have received and/or will receive and/or may receive
and/or have access to certain “Confidential
Information” (as defined below) of Panera. I hereby
acknowledge that such Confidential Information constitutes a
valuable and proprietary asset of Panera which Panera desires to
protect.
5.2 For purposes of this Agreement, “Confidential
Information” shall include, but not be limited to, the
following: this Agreement; 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 my acts or omissions.
5.3 I agree that during the term of this Agreement and at
any time thereafter, I will not, without the written authorization
of Panera: (i) disclose any Confidential Information to any
person or entity for any purpose whatsoever; or (ii) make use
of any Confidential Information for my own purposes or for the
benefit of any other person or entity, other than Panera, and it is
expressly understood and agreed that this
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prohibition restricts me from using any Confidential Information in
competition with Panera at any time.
5.4 I understand that my obligations under this
Section 5 are in addition to, and not in limitation of, my
obligations under Panera’s Standards of Business Conduct (or
successor document thereto).
6. COVENANTS NOT
TO COMPETE
6.1 I covenant and agree that I will not engage in any
“Competitive Activity” (as defined below) at any time
during my employment with the Company and/or within the fifty-two
(52) week period following the date of my termination from the
Company for any reason or no reason.
6.2 “Competitive Activity” shall include the
following:
(i) being
employed by, or directly or indirectly, advising, consulting in, or
acting in any way as an agent for any company listed on Attachment
A (the “Listed Competitors”); or
(ii) 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, but excluding any exclusively based pizza
concept) in which any of the following categories constitutes more
than twenty percent (20%) of its revenues (an “Other
Competitor”): (a) bakery goods and breads;
(b) 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); or
(c) coffee and coffee-based drinks; 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 my
termination; or
(iii) providing
any services, directly or indirectly, to any division or direct or
indirect parent company of any Listed Competitor (including the
parent companies listed on Attachment A), or any Other Competitor,
or to any other affiliated company of a Listed Competitor or Other
Competitor; other than any entity that owns a minority interest in
a Listed Competitor or Other Competitor solely as a passive
investor, without any involvement in the management of such Listed
Competitor or Other Competitor; or
(iv) having,
or acquiring any interest in (whether as proprietor, partner,
member, stockholder, consultant, officer, director, or any type of
principal
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whatsoever) in any Listed Competitor, Other Competitor or in any
division, or direct or indirect parent company of any Listed
Competitor or Other Competitor, 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
(v) directly
or indirectly being employed by, advising, consulting in, or acting
in any way as an agent for any entity or individual: (a) which
is a franchisee of the Company, or (b) which was a franchisee
of the Company at any time within the twelve (12) months
immediately prior to my termination from the Company, or
(c) which the Company is and/or was attempting to secure as a
franchisee at any time within the twelve (12) months
immediately prior to my termination from the Company, or
(d) which the Company may reasonably be expected to secure as
a franchisee at any time within the twelve (12) months
immediately following my termination or (e) which is or was an
equity owner of 10% or more of a Company franchisee; or
(vi) having,
or acquiring any interest in (whether as proprietor, partner,
member, stockholder, consultant, officer, director, or any type of
principal whatsoever) any entity: (a) which is a franchisee of the
Company, or (b) which was a franchisee of the Company at any
time within the twelve (12) months immediately prior to my
termination from the Company, or (c) which the Company is
and/or was attempting to secure as a franchisee at any time within
the twelve (12) months immediately prior to my termination from the
Company, or (d) which the Company may reasonably be expected
to secure as a franchisee at any time within the twelve
(12) months immediately following my termination, or
(e) which includes an entity or individual equity owner that
is or was an equity owner of 10% or more of a Company franchisee;
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.
6.3 Both during the term of my employment with the Company
and at any time within the twenty-four (24) month period
following my termination from the Company for any reason or no
reason, I hereby agree not to directly or indirectly solicit or
otherwise attempt to induce, influence, or encourage any employee,
independent contractor, consultant, supplier, 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
and/or its affiliates.
6.4 For purposes of Section 6, 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
operations as well as any current and/or future Company
operations.
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6.5 At any time I may request a waiver, in whole or in part,
of Section 6 by notifying the Company in writing of my
request. Within 15 days of my providing the Company with
relevant information pertaining to such a waiver request and my
providing such written information as the Company may request
regarding the potential violation of these covenants), the Company,
through the Chief Executive Officer and/or his/her designee, will
consider such a request and communicate with me.
7. SEPARATION
PAY
7.1 Upon the occurrence of a “Separation Event”,
as defined below, and provided I comply with all of the obligations
contained in this Agreement (including, but not limited to
Section 6), Panera agrees to: (i) pay me fifty-two
(52) weeks (the “Separation Period”) of my
“Base Pay” as defined in Subsection 7.2 below; and
(ii) at my option, continue my health and dental insurance
during the Separation Period, with then existing employee premium
payments (if any) to be deducted from my Separation Pay, with COBRA
notification to follow (collectively, the “Separation
Pay”).
7.2 “Base Pay” shall mean my annualized base
salary at the time of the “Separation Event” as
pre-established by the Company, plus my annual car allowance, if
applicable. Unless specifically mentioned in the preceding
sentence, Base Pay shall not include any bonus, incentive
compensation (including, but not limited to, stock options) or
other benefits or allowances I may otherwise be entitled to receive
as of the effective date of the Separation Event. If no base salary
has been pre-
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