Exhibit 10.1
EMPLOYEE SEPARATION
AGREEMENT
This Employee Separation Agreement
(“Agreement”) is between Einstein Noah Restaurant
Group, Inc. (“ENRGI” or the “Company”) and
James W. Hood (“Employee”).
Recitals
1. Employee was employed by ENRGI
until November 25, 2008 (the “Separation Date”),
at which time the Employee’s employment with Company
terminated.
2. Employee and ENRGI wish to
provide for payment of severance benefits to Employee, the
protection of the Company’s business interests, and the
resolution of all differences between them, including, without
limitation, all matters relating to or arising from
Employee’s employment with ENRGI and/or the termination of
that employment.
Agreement
In consideration of the conditions,
covenants and agreements set forth below, the parties agree as
follows:
1. Severance
Compensation.
(a) Employee hereby acknowledges the
termination of Employee’s employment with ENRGI and all
offices and positions with ENRGI and all of its affiliates, all
effective as of the Separation Date. Employee confirms that he has
received all wages and other compensation payable to him for his
services before the Separation Date. In addition, Employee and the
Company acknowledge that, prior to the Separation Date, Employee
incurred certain business expenses on the Company’s behalf
and Employee acknowledges that he has filed his final expense
report for the same and has been reimbursed for all such eligible
expenses.
(b) The “Effective Date”
of this Agreement shall be the date seven days after the Agreement
is signed by both parties and not revoked by Employee.
(c) If Employee does not timely
exercise his right of revocation under paragraph 15(b),
below:
i. ENRGI shall pay Employee
severance compensation in the gross amount of 6 months of
Employee’s base salary ($128,500), which amount shall be
payable in equal installments, less applicable withholdings, over a
six month period of time on each regular Company pay dates,
commencing with the first regular pay period following the
Effective Date;
ii. ENRGI shall pay Employee a lump
sum payment in the amount determined as the pro-rata portion of his
fiscal year 2008 bonus (e.g. both the Company performance portion
and the individual performance portion) for the period of his
service commencing January 2, 2008 and ending on the
Separation Date, less applicable withholdings; provided, however,
that the payment shall be made on a date determined by the Company
no later than March 15, 2009;
iii. Employee has made a timely
election, pursuant to COBRA, to continue his participation in group
medical benefits programs sponsored by Company. The Company shall
pay the costs associated with the continuation of group medical
benefits until December 31, 2009 (the “Transition
Period”). The right to continued coverage paid for by the
Company shall not be subject to liquidation or exchange for another
payment or benefit. Company shall gross up such amounts to cover
taxes so that COBRA payments during the Transition Period shall
represent no net cost to Employee. To the extent that Employee has
made COBRA payments for December 2008, January or February
2009, the Company shall reimburse Employee for such payments by
payment of a lump sum payment on a date determined by the Company
no later than March 15, 2009. Employee may continue his
participation following the end of the Transition Period, at his
own cost, in accordance with and to the extent permitted by
COBRA;
iv. At Employee’s election,
the Company will provide Employee with outplacement services either
(a) through an outplacement firm to be determined by the
Company for 90 days, at a maximum cost to the Company of $15,000
provided that Employee starts utilizing these services within 60
days of the Effective Date or (b) by reimbursing Employee for
the costs of outplacement services up to a maximum of $15,000, at
an outplacement firm of Employee’s choosing, provided that
the outplacement services are performed and eligible expenses are
submitted to the Company within 90 days of the Effective date;
and
iv. The exercise period for
Employee’s outstanding vested stock options, determined as of
the Separation Date, will be extended until December 31,
2009.
(c) The Company will withhold all
applicable income and employment taxes, including without
limitation withholding of federal, state and local taxes, from any
severance compensation paid to Employee pursuant to this Agreement.
Employee agrees to pay all applicable individual income taxes
imposed on him by any governmental taxing authority relating to or
arising from any payment made or benefit provided pursuant to this
Agreement, other than ENRGI’s share of FICA taxes, which FICA
taxes shall be borne by ENRGI. Employee agrees to pay all personal
taxes relating to or arising from any payment made pursuant to this
Agreement, as necessary. Employee shall indemnify ENRGI from and
against all claims by any party arising from Employee’s
failure or refusal to pay any taxes due or claimed to be due,
including costs and attorneys’ fees.
2. Release.
(a) Employee, for himself, his
heirs, personal representatives and assigns, and any other person
or entity that could or might act on behalf of him, including,
without limitation, his counsel (all of whom are collectively
referred to as “Releasers”), hereby fully and forever
releases and discharges ENRGI, its parents, divisions,
subsidiaries, affiliates, and each of their past and present
officers, agents, directors, employees, shareholders, independent
contractors, attorneys, insurers, and any and all other persons or
entities that are now or may become liable to any Releaser due to
any Releasee’s act or omission (all of whom are collectively
referred to as “Releasees), of and from any and all actions,
causes of action, claims, demands, costs and expenses, including
attorneys’ fees, of every kind and nature whatsoever, in law
or in equity, whether now known or unknown, that Releasers, or any
person acting under any of them, may now have, or claim at any
future time to have, based in whole or in part upon any act or
omission occurring from the beginning of time through the date of
execution of this Agreement, including but not limited to, any
claim in connection with Employee’s employment relationship
with ENRGI, or the termination thereof, without regard to present
actual knowledge of such acts or omissions, including specifically,
but not by way of limitation, matters which may arise at common
law, such as breach of contract, express or implied, promissory
estoppel, wrongful discharge, tortious interference with
contractual rights, infliction of emotional distress, defamation,
or under federal, state or local laws, such as the Fair Labor
Standards Act, the Employee Retirement Income Security Act, the
National Labor Relations Act, Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act (except for claims
arising after this Agreement), the Rehabilitation Act of 1973, the
Equal Pay Act, the Americans with Disabilities Act; EXCEPT for the
rights and obligations created by this Agreement AND EXCEPT for any
vested rights under any pension, retirement, profit sharing, health
and welfare or stock option, or similar plan.
(b) Employee hereby warrants that he
has not assigned or transferred to any person any portion of any
claim which is released, waived and discharged above.
(c) Employee further warrants that
except as he has reported to the Company before the Separation
Date, he has not experienced any illness, injury, or disability
compensable or recoverable under the worker’s compensation
laws of any state, and Employee agrees that he will not file a
worker’s compensation claim asserting the existence of any
such previously unreported illness, injury, or
disability.
(d) Employee specifically represents
that he has had a full and fair opportunity to consult with counsel
of his own choosing concerning the agreements, representations, and
declarations set forth in this Agreement. Employee understands and
agrees that by signing this Agreement he is giving up his right to
bring any legal claim against ENRGI concerning, directly or
indirectly, Employee’s employment relationship with ENRGI,
including his separation from employment. Employee agrees that this
legal release is intended to be interpreted in the broadest
possible manner in favor of ENRGI, to include all actual or
potential legal claims that Employee may have against ENRGI, except
as specifically provided otherwise in this Agreement.
Notwithstanding any other provision of this Agreement, this release
shall not waive or in any way limit or otherwise affect
Employee’s rights, if any, to indemnification and/or defense
in connection with any claim that may be asserted against Employee
as a consequence of his employment with the Company, whether such
rights arise under the Company’s articles of incorporation,
bylaws, insurance contracts or otherwise.
(e) ENRGI, for itself, its agents,
divisions, subsidiaries, representatives, successors and assigns,
and any other person or entity that could or might act on behalf of
it, including, without limitation, its counsel (all of whom are
collectively referred to as “ENRGI Releasers”), hereby
fully and forever releases and discharges Employee, his heirs,
personal representatives and assigns, and any and all other persons
or entities that are now or may become liable to any ENRGI Releaser
due to Employee’s act or omission (all of whom are
collectively referred to as “Employee Releasees”), of
and from any and all actions, causes of action, claims, demands,
costs and expenses, including attorneys’ fees, of every kind
and nature whatsoever, in law or in equity, whether now known or
unknown, that ENRGI Releasers, or any person acting under any of
them, may now have, or claim at any future time to have, based in
whole or in part upon any act or omission occurring from the
beginning of time through the date of execution of this Agreement,
provided, however, that this Release shall not include any action
brought by any ENRGI Releasers arising out of, or as a result of,
Employee Releasee’s acts or omissions which result in an
action against ENRGI Releasers.
3. Protection of
T rade Secrets and Confidential
Information.
(a) Definition of
“Confidential Information.” As used in this agreement, “Confidential
Information” means all nonpublic information (whether in
paper or electronic form, or contained in Employee’s memory,
or otherwise stored or recorded) relating to or arising from
Company’s business, including, without limitation, trade
secrets used, developed or acquired by Company in connection with
its business. Without limiting the generality of the foregoing,
“Confidential Information” shall specifically include
all information concerning the manner and details of
Company’s operation, organization and management; financial
information and/or documents and nonpublic policies, procedures and
other printed, written or electronic material generated or used in
connection with Company’s business; Company’s business
plans and strategies; the details of Company’s relationships
with its customers, distributors, contractors and vendors;
nonpublic forms, contracts and other documents used in
Company’s business; all confidential information concerning
Company’s employees, agents and contractors, including
without limitation such persons’ compensation, benefits,
skills, abilities, experience, knowledge and shortcomings, if any;
the nature and content of proprietary computer software used in
Company’s business; and all other information concerning
Company’s concepts, prospects, customers, employees, agents,
contractors, earnings, products, services, equipment, systems,
and/or prospective and executed contracts and other business
arrangements. “Confidential Information” does not
include information that (i) is now in or later enters the
public domain through no wrongful act on the part of Employee,
(ii) was in possession of the Employee prior to receipt from
the Company, (iii) is or was independently developed by the
Employee without use of the Company’s
confidential information,
(iv) is furnished to others by the Company without
restrictions similar to those herein on the right of the Employee
to use or disclose such information, or (v) must be disclosed
pursuant to requirements of law or valid legal process, provided
that the Employee shall promptly notify the Company in advance of
any such disclosure and reasonably cooperate in the Company’s
attempts to maintain the confidentiality of its information at
issue.
(b) Employee’s Use of
Confidential Information. Employee shall not, without Company’s
prior written consent, at any time, directly or indirectly, for a
period of three (3) years following the Effective Date:
(i) use any Confidential Information for any purpose; or
(ii) disclose or otherwise communicate any Confidential
Information to any person or entity without the Company’s
prior written consent.
(c) Acknowledgments.
Employee acknowledges
that
