Published on January 5, 2009
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EXECUTION
VERSION
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Exhibit
10.1
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AGREEMENT AND
RELEASE
IT IS HEREBY AGREED by and between
Nigel Travis (“Employee”) and Papa John’s International, Inc. (“Papa John’s”),
effective as of December 31, 2008, for the good and sufficient consideration set
forth below as follows:
1. (a)
Employee’s employment with Papa John’s shall terminate effective December 31,
2008 (the “date of separation”). Papa John’s will continue to pay
Employee his current base salary and provide employee benefits through the date
of separation, including any benefits Employee is entitled to under Papa John’s
401(k) benefit plan through the date of separation.
(b)
Subject to Employee’s material compliance with this Agreement and Release, Papa
John’s agrees to provide Employee with the benefits that Employee would be
entitled to under the Papa John’s Long-Term Incentive Plan and Management
Incentive Plan for the performance periods ending December 31, 2008 as if
Employee remained eligible to be paid such benefits, payable at the same time
such amounts are payable to employees generally in 2009. The parties
agree that the compensation to be paid pursuant to Paragraph 1(b) is
compensation that Employee would not otherwise be entitled to because receipt of
such compensation depends upon employee being employed as of the time of payment
for MIP which will be paid in late February or early March 2009.
(c)
Employee’s stock options that are unvested as of the date of separation shall
immediately expire and be cancelled at 4:00 pm Eastern Standard Time on December
31, 2008. Employee’s stock options that are vested as of the date of
separation shall remain outstanding until the time specified on Exhibit A, in
accordance with the terms of the plans under which they were issued, and shall
expire and be cancelled if not exercised before such time. Employee
acknowledges and agrees that Exhibit A contains a complete listing of all equity
awards granted to him by Papa John’s.
(d)
Subject to this Paragraph 1, Employee’s benefits will be governed by applicable
plan terms. For the avoidance of doubt, Employee may elect “COBRA”
health continuation coverage, effective as of January 1, 2009, pursuant to the
requirements of Papa John’s group health plan.
(e) Papa
John’s shall pay Employee an amount equal to $20,000 for legal and accounting
fees incurred by Employee in connection with the negotiation of this Agreement
and Release, which amount shall be paid promptly following the date of
separation.
(f)
Employee acknowledges and agrees that Employee shall no longer have any right to
any other amount, including pursuant to his Employment Agreement dated as of
January 31, 2005, as amended from time-to-time (the “Employment
Agreement”).
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EXECUTION
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Exhibit
10.1
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2. Employee
acknowledges receipt of any salary, wages, incentives, bonuses, commissions and
any other type of compensation due to Employee, and Employee acknowledges that
Employee has been paid in full and is owed no additional compensation of any
kind, for work performed through and including the date
hereof. Employee further acknowledges that, as of the date of
Employee’s signing of this Agreement and Release, Employee has sustained no
injury or illness related in any way to Employee’s employment with Papa John’s
for which a workers compensation claim has not already been filed.
3. Employee
acknowledges that he has resigned as Papa John’s President & CEO, and a
member of Papa John’s board of directors, effective as of December 4,
2008.
4. In
return for Papa John’s agreement to provide Employee with the consideration
referred to in Paragraph 1, Employee, for Employee and Employee’s heirs,
beneficiaries, devisees, privies, executors, administrators, attorneys,
representatives, and agents, and Employee’s and their assigns, successors and
predecessors, hereby releases and forever discharges Papa John’s and its parent,
subsidiaries and affiliates, its and their officers, directors, employees,
members, agents, attorneys and representatives, and the predecessors, successors
and assigns of each of the foregoing (collectively, the “Papa John’s Released
Parties”) from any and all actions, causes of action, suits, debts, claims,
complaints, charges, contracts, controversies, agreements, promises, damages,
counterclaims, cross-claims, claims for contribution and/or indemnity, claims
for costs and/or attorneys’ fees, judgments and demands whatsoever, in law or
equity, known or unknown, that Employee ever had, now has, or may have against
the Papa John’s Released Parties as of the date of Employee’s signing of this
Agreement and Release. This release includes, but is not limited to,
any claims alleging breach of express or implied contract, wrongful discharge,
constructive discharge, breach of an implied covenant of good faith and fair
dealing, negligent or intentional infliction of emotional distress, negligent
supervision or retention, violation of the Age Discrimination in Employment Act,
the Older Workers Benefit Protection Act, the Civil Rights Act of 1866, Title
VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the
Sarbanes-Oxley Act of 2002, claims pursuant to any other federal, state or local
law regarding discrimination, harassment or retaliation based on age, race, sex,
religion, national origin, marital status, disability, sexual orientation or any
other unlawful basis or protected status or activity, and claims for alleged
violation of any other local, state or federal law, regulation, ordinance,
public policy or common-law duty having any bearing whatsoever upon the terms
and conditions of, and/or cessation of Employee’s employment with and by Papa
John’s. This release does not include claims that may not be released
under applicable law or any claims resulting from Papa John’s fraud or willful
misconduct or that Papa John’s actively concealed from Employee, and also does
not include: any claims or rights to any vested pension or retirement
(401(k) and deferred compensation) benefits, any claims that arise from the
enforcement of this Agreement, and any rights or claims that Employee has or may
have to indemnification and or coverage under any Directors/Officers insurance
or benefits programs.
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EXECUTION
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Exhibit
10.1
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In return
for Employee’s agreement set forth above, Papa John’s and its parent,
subsidiaries and affiliates, its and their officers, directors, employees,
members, agents, attorneys and representatives and the predecessors, successors
and assigns of each of the foregoing, hereby releases and forever discharges
Employee and Employee’s heirs, beneficiaries, devisees, privies, executors,
administrators, attorneys, representatives, and agents, and Employee’s and their
respective assigns, successors and predecessors (collectively “Employee Released
Parties”) from any and all actions, causes of action, suits, debts, claims,
complaints, charges, contracts, controversies, agreements, promises, damages,
counterclaims, cross-claims, claims for contribution and/or indemnity, claims
for costs and/or attorney fees, judgments and demands whatsoever, in law or
equity, known or unknown, that Papa John’s ever had, now has, or may have
against the Employee Released Parties as of the date of Papa John’s signing of
this Agreement and Release. This release includes, but is not limited
to, any claims alleging breach of express or implied contract, breach of an
implied covenant of good faith and fair dealing, the Sarbanes-Oxley Act of 2002,
and claims for alleged violation of any other local, state or federal law,
regulation, ordinance, public policy or common-law duty having any bearing
whatsoever upon the terms and conditions of Employee’s employment with and by
Papa John’s; provided that this paragraph shall not apply to any claims
resulting from Employee’s fraud or willful misconduct or that Employee actively
concealed from Papa John’s (and neither Papa John’s nor any of its officers or
directors is currently aware of such a claim). This release does not
include claims that may not be released under applicable law and also does not
include any claims that arise from the enforcement of this Agreement or Sections
3 through 6 of the Employment Agreement, which arise subsequent to the execution
of this Agreement by both parties. For the avoidance of doubt, Papa
John’s hereby acknowledges that based on its knowledge of the facts and
circumstances, it does not intend to assert any claims it may have, including
under Section 6.2.1 of the Employment Agreement, as of the date hereof against
Dunkin’ Brands Inc., Bain Capital or any of their affiliates arising solely from
Employee having accepted employment at Dunkin’ Brands, Inc.
5. Employee
agrees not only to release and discharge the Papa John’s Released Parties from
any and all claims against the Papa John’s Released Parties that Employee could
make on Employee’s own behalf, but also those which may have been or may yet be
made by any other person or organization on Employee’s
behalf. Employee specifically waives any right to become, and
promises not to become, a member of any class in a case in which any claim or
claims are asserted against any of the Papa John’s Released Parties based on any
acts or omissions occurring on or before the date of Employee’s signing of this
Agreement and Release. If Employee is asserted to be a member of a
class in a case against any of the Papa John’s Released Parties based on any
acts or omissions occurring on or before the date of Employee’s signing of this
Agreement and Release, Employee shall immediately withdraw with prejudice in
writing from said class, if permitted by law to do so. Employee
agrees that Employee will not encourage or assist any person in filing or
pursuing any proceeding, action, charge, complaint, or claim against the Papa
John’s Released Parties, except as required by law.
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EXECUTION
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Exhibit
10.1
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6. This
Agreement and Release is not intended to interfere with the Employee’s exercise
of any protected, nonwaivable right, including Employee’s right to file a charge
with Equal Employment Opportunity Commission or other government
agency. By entering into this Agreement and Release, however,
Employee acknowledges that the consideration set forth herein is in full
satisfaction of any amounts to which Employee might be entitled and, except as
otherwise provided herein, Employee is forever discharging the Papa John’s
Released Parties from any liability to Employee for any acts or omissions
occurring on or before the date of Employee’s signing of this Agreement and
Release.
7. Neither
this Agreement and Release, nor anything contained herein, shall be construed as
an admission by the Papa John’s Released Parties or the Employee Released
Parties of any liability or unlawful conduct whatsoever. The parties
hereto agree and understand that the consideration set forth in Paragraph 1
including without limitation the consideration set forth in Paragraph 1(b) is in
excess of that which Papa John’s is obligated to provide to Employee, and that
it is provided solely in consideration of Employee’s execution of this Agreement
and Release. Papa John’s and Employee agree that the consideration
set forth in Paragraph 1 is sufficient consideration for the release being given
by Employee in Paragraphs 4, 5 and 6, and for Employee’s other promises
herein. Papa John’s and Employee agree that the consideration set
forth in Paragraphs 1, 3, 4, 5 and 9 and Papa John’s other promises herein are
sufficient consideration for the release being given herein by Papa John’s to
Employee and the Employee Released Parties.
8. Employee
will direct all requests for references to Papa John’s human resources
department, which will confirm Employee’s job title, dates of employment and,
with written authorization from Employee, Employee’s salary.
9. Employee
agrees not to intentionally make, or intentionally cause any other person to
make, any public statement that is intended to criticize or disparage any Papa
John’s Released Party. Papa John’s agrees to instruct its senior
executive officers and directors not to intentionally make, or intentionally
cause any other person to make, any public statement that is intended to
criticize or disparage Employee. This Paragraph 9 shall not be
construed to prohibit any person from responding publicly to incorrect public
statements or from making truthful statements when required by law, subpoena,
court order, or the like.
10. (a) Employee
agrees not to use, disclose to others, or permit anyone access to any of Papa
John’s trade secrets or confidential or proprietary information without Papa
John’s express consent, and to return immediately to Papa John’s all Papa John’s
property upon termination of Employee’s employment except for Employee’s
blackberry and laptop computer which he may retain as his sole property (the
computer has been presented to Papa John’s IT personnel, who replaced the
computer in order to delete all Papa John’s-specific information therefrom and
Employee personally deleted all Papa John’s specific information from the
blackberry). Employee shall not retain any copy or other reproduction
whatsoever of any Papa John’s property or information after the termination of
Employee’s employment.
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EXECUTION
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Exhibit
10.1
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(b) Employee
shall comply with the covenants in Sections 3 through 6 of the Employment
Agreement, including Section 6.2 thereof, it being agreed and understood that,
notwithstanding anything in this Agreement or the Employment Agreement to the
contrary or otherwise, in and of itself Employee’s decision to accept employment
with Dunkin’ Brands, Inc. shall not be deemed a violation of Section 6.2.1 of
the Employment Agreement or of Section 10(b) or any other provision of this
Agreement and Release.
(i) For
the avoidance of doubt, Employee shall not disclose any “Confidential
Information” (as defined in Section 3.2 of the Employment Agreement) to Dunkin’
Brands, Inc, Bain Capital, Domino’s Pizza, Inc. (“Domino’s”), or any of their
affiliates or their respective officers, directors, employees, members, agents,
attorneys and representatives (collectively, the Dunkin’, Bain and Domino’s
Affiliated Persons”).
(ii) For
the avoidance of doubt, during the three-year period following the date of
separation, Employee will not on behalf of himself or any other person
(including, without limitation, Dunkin’, Bain and Domino’s Affiliated Persons),
engage or invest in, solicit investment in, own, manage, operate, finance,
control, be employed by or associated with, provide services or advice to, be a
director of, or participate in the ownership, management, operation, or
development of, or otherwise be associated or connected with, (a) any business
which operates pizza restaurants, any food service manufacturing and
distribution business which services any pizza restaurant chain with 400 or more
restaurants at any time during his tenure with Papa John’s (including, without
limitation, Domino’s), (b) any other food or restaurant business which Papa
John’s developed or acquired during Employee’s tenure with Papa John’s, or (c)
any business that is competitive with Papa John’s or its affiliates; provided,
however, that nothing herein will preclude Employee from owning and holding not
more than one percent (1%) of any mutual funds or class of securities of any
enterprise if such funds or securities are listed on any national or regional
exchange or have been registered under Section 12(g) of the Securities Act of
1934.
(c) In
furtherance of this Paragraph 10, Employee agrees that (i) after he is in
receipt of a written request from Papa John’s he will certify to Papa John’s in
writing on each January 31st,
commencing January 31, 2009 and continuing through January 31, 2012, his
continued compliance with the provisions of Sections 3 and 6 of the Employment
Agreement and this Paragraph 10; and (ii) he shall be available for telephonic
interviews at reasonable and mutually convenient times to discuss such
compliance.
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EXECUTION
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Exhibit
10.1
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11. This
Agreement and Release contains the full agreement of the parties and may not be
modified, altered, changed, waived or terminated except upon the express prior
written consent of Papa John’s and Employee or their authorized
agents.
12. Employee
acknowledges and agrees that: (a) no promise or inducement for this Agreement
and Release has been made except as set forth in this Agreement and Release; (b)
this Agreement and Release is executed by Employee without reliance upon any
statement or representation by Papa John’s except as set forth herein; (c)
Employee is legally competent to execute this Agreement and Release and to
accept full responsibility therefor; (d) Employee has been given twenty-one (21)
days within which to consider this Agreement and Release; (e) Employee has used
all or as much of that twenty-one (21) day period as Employee deemed necessary
to consider fully this Agreement and Release and, if Employee has not used the
entire twenty-one (21) day period, Employee waives that period not used; (f)
Employee has read and fully understands the meaning of each provision of this
Agreement and Release; (g) Papa John’s has advised Employee to consult with an
attorney concerning this Agreement and Release; (h) Employee freely and
voluntarily enters into this Agreement and Release; and (i) no fact, evidence,
event, or transaction currently unknown to Employee but which may hereafter
become known to Employee shall affect in any manner the final and unconditional
nature of the release stated above.
13. This
Agreement and Release shall become effective and enforceable on the eighth (8th)
day following execution hereof by Employee unless Employee revokes it by so
advising Papa John’s in writing received by Papa John’s International, Inc.,
2002 Papa John’s Boulevard, Louisville, Kentucky 40299, Attn: J.
David Flanery, Chief Financial Officer, with a copy to Christopher Sternberg,
General Counsel, before the end of the seventh (7th) day after its execution by
Employee.
14. Papa
John’s and Employee agree that any dispute arising under or relating in any way
to this Agreement and Release will be submitted to arbitration in Louisville,
Kentucky, in front of a single arbitrator, in accordance with the then-current
employment dispute resolution rules of the American Arbitration Association, as
the exclusive remedy for such dispute, except that Papa John’s reserves the
right to seek preliminary or injunctive relief and/or appropriate equitable
relief in a court of competent jurisdiction for violations by Employee of
Paragraphs 8, 9 or 10 of this Agreement and Release, and Employee reserves the
right to seek preliminary or injunctive relief and/or appropriate equitable
relief in a court of competent jurisdiction for violations by Papa John’s of
Paragraphs 8 and 9 of this Agreement and Release. Papa John’s and
Employee agree that such arbitration will be confidential except that the
parties may discuss the arbitration if required by law and as reasonably
necessary to prosecute or defend the arbitration or to enforce any decision in
such arbitration. Any damages awarded in such arbitration shall be
limited to the contract measure of damages, and shall not include punitive
damages. Each party shall be responsible for its own attorneys’ fees
and costs associated with such arbitration, except that, to the extent permitted
by law, the cost of the arbitration (such as the arbitrator’s fee) shall be
shared equally between Papa John’s and Employee.
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EXECUTION
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Exhibit
10.1
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15. The
Agreement and Release shall be governed by and construed in accordance with the
laws of the Commonwealth of Kentucky, without regard to principles of conflicts
of law.
16. The
waiver by any party of a breach of any provision herein shall not operate or be
construed as a waiver of any subsequent breach by any party.
17. The
provisions of this Agreement and Release are severable. Should any
provision herein be declared invalid by a court or arbitrator of competent
jurisdiction, the remainder of the Agreement and Release will continue in force,
and the parties agree to renegotiate the invalidated provision in good faith to
accomplish its objective to the extent permitted by law.
18. This
Agreement and Release may be signed in counterparts, and each counterpart shall
be considered an original agreement for all purposes.
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EXECUTION
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Exhibit
10.1
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IN
WITNESS WHEREOF, effective as of the date set forth above, the parties have
hereunto set their hands.
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/s/
Nigel Travis
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/s/
J. David Flanery
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Nigel
Travis
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J.
David Flanery
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For
Papa John's International, Inc.
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Title:
Senior Vice President, Chief
Financial Officer
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EXECUTION
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Exhibit
10.1
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EXHIBIT
A
Outstanding
Stock Options
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Grant
Date
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Number
of Shares
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Exercise
Price
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Expiration
Date
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Subject
to Options
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for
Vested Portion
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January
31, 2005
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100,000
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$16.085
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4:00
p.m. EST on
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February
27, 2009
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|||||
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March
15, 2005
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230,658
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$17.975
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4:00
p.m. EST on
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February
27, 2009
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|||||
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April
19, 2006
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170,000
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$32.65
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4:00
p.m. EST on
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February
27, 2009
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|||||
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May
9, 2007
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170,000
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$33.92
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4:00
p.m. EST on
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February
27, 2009
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|||||
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May
8, 2008
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170,000
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$26.31
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No
portion vested; all
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expire
on date of
separation
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