SEPARATION AGREEMENT, RELEASE & WAIVER
THIS AGREEMENT is made and entered as of the last date set forth below,
by and between Xxxxxxxx'x International, Inc., its affiliates, subsidiaries, and
their successors and assigns, and all of their past and present employees,
officers, directors, franchisees and agents (collectively referred to herein for
purposes of this Agreement as "Applebee's") and Xxxx X. Xxxxxxxx ("Executive").
Applebee's and Executive agree as follows:
1. Executive's employment status with Applebee's will terminate as of
the end of the business day on July 31, 2006 ("Resignation Date") and until such
date Executive will retain the benefits and perquisites of his employment
(Executive's current office on Applebee's premises and his current personal
secretary, employee benefits, computer, email, current office telephone number
and voicemail, currently assigned parking space at the Applebee's offices, cell
phones, Blackberry, etc). Executive agrees to cooperate and assist Applebee's in
the orderly transition of Executive's duties and, further, to cooperate and
assist Applebee's in the investigation and handling of any actual or threatened
court action, arbitration or administrative proceeding involving any matter that
arose during Executive's employment (including, but not limited to, testifying
in deposition and/or court, and providing information to Applebee's) for which
Applebee's will pay all transportation, lodging, meal and other travel costs on
the same basis as other senior officers' business expenses, as well as any
attorneys fees and expenses incurred in connection with such assistance.
2. Upon the Resignation Date, Executive shall receive any normal salary
due Executive which is earned as of the Resignation Date and any un-reimbursed
business expenses incurred through the Resignation Date. Executive agrees that
any earned but unused vacation as of the date of this Agreement will be taken
prior to the Resignation Date and that no vacation payout will be due and owing
Executive upon or after the Resignation Date. Executive acknowledges and agrees
that Executive is not eligible for any bonus under any existing or previously
existing bonus plan. Furthermore, Executive's eligibility for other normal,
regular employment benefits including, but not limited to any stock option
grants, life, health and disability insurance and Executive's participation in
the Executive Retirement Plan, the Deferred Compensation Plan and the FlexPerx
Program shall continue to be governed by the terms and provisions of each of
those plans.
3. Executive is not automatically eligible for any separation benefits
under any policy or practice of Applebee's. Executive is eligible for the
following separation benefits (the "Separation Benefits") only if Executive
signs this Agreement and Executive complies with the other terms of this
Agreement:
(a) Executive shall be offered a Consulting Agreement, the form of
which is attached hereto, pursuant to which Executive will consult with
Applebee's on marketing strategies and related matters for a period of
approximately twelve (12) weeks, beginning Tuesday, August 1, 2006
through Friday, October 20, 2006, in exchange for a consulting fee
equal to twelve (12) weeks of Executive's base salary as of the date
this Agreement is signed, to be paid in bi-weekly installments.
Executive will be allowed to provide such consulting services from his
personal residence and will be reimbursed for actual and reasonable
expenses incurred if travel is requested by Applebee's during the
course of the Consulting Agreement.
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(b) Upon expiration of Executive's Consulting Agreement and upon
Applebee's receipt of notice by Executive that Executive remains
unemployed, Executive shall be eligible to receive separation pay in an
amount equivalent to base salary, minus normal withholding and
deductions for an additional period of thirty (30) weeks ("Separation
Pay"), or until Executive becomes employed, whichever occurs first, at
which time Separation Pay will cease. Executive agrees to provide
Applebee's with written notice upon Executive's acceptance of
employment prior to Executive's start date with a new employer. Failure
to provide Applebee's with such notice will result in Executive's
obligation to re-pay any Separation Pay and COBRA premiums that were
paid between the date of Executive's employment and the date Executive
provides notice of employment.
(c) Should Executive elect continued health benefit coverage under
COBRA following the Resignation Date, Applebee's will pay a portion of
Executive's COBRA premium such that Executive's portion of the COBRA
premium is no greater than Executive's current employee premium for
Executive's current level of health coverage. Applebee's payment of a
percentage of Executive's COBRA premium extends only to those levels of
coverage in place as of the date of this Agreement and expires upon the
expiration of Executive's eligibility for Separation Pay as set forth
above. COBRA premium payments are also contingent on Executive's
eligibility for Separation Pay as set forth above.
(d) If Executive signs on July 31, 2006, and does not revoke, the
Executive Post-Resignation Waiver and Release (the form of which is
attached hereto), Executive will be eligible to receive a
Post-Resignation Bonus, to be paid on March 1, 2007 (or that date in
2007 otherwise selected by Applebee's for the payment of 2006 bonuses
to officers), equal to but no greater than, five-twelfths (5/12) of
Executive's current 2006 bonus target multiplied by the 2006 year end
BAM ("Big Apple Metric") attainment.
If Executive fails to execute this Separation Agreement, Release & Waiver
("Agreement") within the period of time set forth in Paragraph 12 hereof or if
Executive revokes this Agreement, Executive will not be eligible to receive any
of the above-mentioned Separation Benefits which have not been paid and will be
obligated to re-pay or reimburse Applebee's for any of the Separation Benefits
which have been provided to Executive.
4. In exchange for this Agreement, including the Separation Benefits
set forth above, Executive (on behalf of Executive and anyone claiming through
or on behalf of Executive) agrees that Executive:
(a) releases Applebee's from any and all claims, demands and causes of
action which Executive has or may have had against any of them prior to the date
Executive signs this Agreement, to the maximum extent permitted by law. This
release includes, but is not limited to, any and all claims, demands and causes
of action which are related to or concern: Executive's salary, bonus and
benefits; Executive's vacation and sick leave; Executive's employment and
Executive's separation from employment (which shall include any and all real or
alleged rights to re-employment with Applebee's, its affiliates, its parent and
its subsidiaries and their successors and assigns); discrimination under local,
state or federal law, including but not limited to claims under the Age
Discrimination in Employment Act; the Older Workers' Benefit Protection Act;
Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the
Americans With Disabilities Act; the Executive Retirement Income Security Act;
and the Family and Medical Leave Act; except that this release shall not apply
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to (i) all amounts payable to Executive under this Agreement and the Consulting
Agreement, (ii) Executive's right to indemnification under the company charter,
by-laws and applicable law for Executive's acts and omissions occurring during
Executive's employment; and (iii) all vested and accrued welfare and
retirement/401(k) benefits and deferred compensation payable to Executive in
accordance with the terms of the applicable benefit plans in which Executive
participates.
(b) will not disparage Applebee's or its employees. "Disparage" means
to discredit Applebee's or any of its employees with words or actions that could
influence others to a negative impression of Applebee's or its employees and
could discourage patronage, employment, or business transactions with
Applebee's.
(c) shall protect Confidential Information from disclosure.
"Confidential Information" is information relating to the Applebee's customers,
operations, finances, and business that derives value from not being generally
known to others (including any individual, corporation, partnership,
association, unincorporated organization or other entity), and includes, but is
not limited to, trade secrets, technical or non-technical data, formulas,
patterns, compilations, programs, devices, methods (including cost and/or
pricing methods and operating methods), techniques, drawings, processes,
software programs, financial data (including marketing information, strategies
and personnel data), or lists of actual or potential customers, consumers, or
suppliers (including identifying information about those customers), whether or
not reduced to writing. Confidential Information includes information disclosed
to Applebee's by third parties that Applebee's is obligated to maintain as
confidential. Confidential Information subject to this Agreement may also
include information that is not a trade secret. Executive shall not use, except
in connection with work for Applebee's, and shall not disclose the Applebee's
Confidential Information. Confidential Information, includes, but is not limited
to, Executive's knowledge of upcoming menu campaigns, work in connection with
Design Forum, and current, future and potential marketing programs to generate
guest traffic. This provision will cease to apply to Confidential Information
which is not also a trade secret three (3) years after the effective date of
this Agreement.
(d) for twelve (12) months following the Resignation Date, may not,
without the prior written consent of Applebee's, directly or indirectly, as an
employee, employer, consultant, agent, principal, franchisee, partner,
shareholder, corporate officer, director or through any kind of ownership (other
than ownership of securities of publicly held corporations of which Executive
owns less than one percent 1% of any class of outstanding securities) or in any
other representative or individual capacity, engage in or render any services
to, acquire any financial or beneficial interest in (including any interest in
corporations, partnerships, trusts, unincorporated associations or joint
ventures), advise, help, consult, be employed by, serve on the Board of
Directors of, guarantee loans or make loans to, the restaurant companies that
operate a casual dining concept set forth below or the specific casual dining
concepts set forth below:
Xxxxxxx
Xxxx Tuesday
O'Charley's
Xxxxxx
Red Xxxxx
TGI Fridays
OSI Restaurant Partners
RARE
Texas Roadhouse
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Buffalo Wild Wings
The term "casual dining concept" for purposes of this list is defined as "sit
down" restaurants within North America serving alcoholic beverages, with a per
guest average check of under $20.00.
(e) for twelve (12) months following the Resignation Date of this
Agreement, will not, either directly or indirectly, for himself or for any third
party employ, solicit, induce, recruit or cause another person in the employ of
Applebee's, to terminate his/her employment for the purpose of joining,
associating or becoming employed with any business or activity that is engaged
in the casual dining restaurant industry.
Executive's obligations under subparagraphs (d) and (e) are in effect for one
year from the Resignation Date regardless of whether Executive receives
Separation Pay following the signing of this Agreement.
5. Executive represents that Executive has returned or, prior to the
Resignation Date, will return all Applebee's and Applebee's affiliates' credit
cards, computers, phones, blackberries, electronic devices, files, records,
manuals, documents, plans, drawings, specifications, equipment, software,
pictures, videotapes or any property or other items of Applebee's, or concerning
the business of Applebee's, whether prepared by Executive or otherwise coming
into Executive's possession or control. In addition to subparagraph (c) above,
Executive further agrees to abide by and reaffirms the contractual commitments
contained in any confidentiality agreement previously executed by Executive.
Executive further agrees that work product or shop work development by Executive
or under his supervision during the normal scope and course of Executive's
employment at Applebee's is and remains the sole and exclusive property of
Applebee's. Executive further agrees that Applebee's shall have the right to
open U.S. mail, parcel post, private overnight mail deliveries or any other
forms of deliveries that may continue to be directed to Executive at Applebee's
address after Executive's employment ceases and Executive further agrees that
such actions by Applebee's shall not be considered an invasion of privacy.
Applebee's agrees that, to the extent such mail and/or deliveries have no
business purpose, but are solely private or personal in nature, it will be
forwarded to Executive to an address specified by Executive.
6. Until Applebee's makes it publicly available to the extent required
by law or regulation, the contents of this Agreement are confidential.
Executive's discussions with Applebee's pertaining to this Agreement are
considered confidential even after the contents of this Agreement are made
public. "Confidential" means Executive will not communicate or allow the
communication in any manner with respect to this Agreement, and the discussions
pertaining to it, except that the Agreement may be disclosed by Executive to
Executive's immediate family members, Executive's attorney and accountant or to
governmental taxing authorities (Authorized Persons). If Executive communicates
the content of this Agreement to any Authorized Person, then Executive must
advise such Authorized Person of Executive's confidentiality obligations and the
Authorized Person's responsibility to comply with the same. In communicating
Executive's resignation and thereafter, Applebee's agrees that it will not
disparage Executive. "Disparage" for purposes of this provision, means to
publicly and without legal requirement or justification, discredit Executive
with words that could influence others to a negative impression of Executive and
could discourage employment of or business transactions with Executive.
7. Applebee's hereby advises Executive to consult with an attorney
prior to executing this Agreement. Executive may revoke this Agreement within
seven (7) calendar days after Executive signs it. Executive understands that
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Executive's revocation of this Agreement may accelerate Executive's separation
from employment with Applebee's to a date selected by Applebee's.
8. This Agreement is effective and enforceable on the eighth (8th)
calendar day following the date Executive signs this Agreement. Separation
Benefits will begin pursuant to Paragraph 3.
9. Executive acknowledges that no representations have been made to
Executive by Applebee's, its agents or legal counsel regarding the tax
implications of any payments made pursuant to this Agreement. All liability for
federal, state, and local taxes (including FICA) remains with Executive, unless
otherwise agreed to in writing by Applebee's, and Applebee's shall deduct all
required withholdings from the consideration payable under this Agreement.
10. This Agreement shall be construed in accordance with the laws of
the State of Kansas.
11. This Agreement contains the entire agreement of the parties with
respect to the matters contemplated by this Agreement. No change, modification
or waiver of any provision of this Agreement will be valid unless in writing and
signed by the parties to be bound.
12. Executive represents and agrees that Executive had at least 21 days
or an otherwise reasonable time to consider this Agreement, that Executive
freely and voluntarily executed this Agreement, that Executive had the
opportunity to consult with an attorney, and that no promise, inducement or
agreement not expressed in this Agreement has been made to Executive by
Applebee's or any of the Applebee's affiliates or parent.
13. If Executive breaches any provision of this Agreement, or if one or
more provisions of this Agreement is ever determined by a court to be
unenforceable, Applebee's, at its option, will be entitled to stop any future
payment and recover from Executive the entire cash portion of the separation
payment previously made to Executive by Applebee's as set forth above, plus
Applebee's costs and attorneys' fees. Applebee's may also pursue any other
available remedies. Any such legal action by Applebee's shall not be considered
by Executive to be retaliatory.
14. This Agreement is binding on and inures to the benefit of
Applebee's successors and assigns and Executive's heirs and assigns, except that
any services to be provided by Executive under this Agreement shall only be
performed by Executive.
15. Any dispute or claim arising out of or relating to this Agreement
shall be settled by arbitration in Xxxxxxx County, Kansas, by one arbitrator in
accordance with current "National Rules for the Resolution of Employment
Disputes" or similarly described rules of the American Arbitration Association,
and judgment upon any award rendered therein may be entered in any court having
proper jurisdiction. Each party shall bear its own costs and expenses, including
attorneys' fees, related to the dispute or claim and the parties shall share
equally the costs and fees of the arbitrator; provided however, that an arbitral
award finding that one party substantially prevailed in the proceeding, may
award to that party all or any portion of its costs and expenses, including
attorney's fees and its portion of the costs and fees of the arbitrator.
16. Notices to Applebee's shall be sent to:
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Xxxx Sword
Chief People Officer
Xxxxxxxx'x International, Inc.
0000 X. 000xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
CONFIDENTIAL - To be Opened by Addressee Only
Dated:
-------------------- -----------------------------------------------
Xxxx X. Xxxxxxxx - EXECUTIVE
XXXXXXXX'X INTERNATIONAL INC.,
on behalf of APPLEBEE'S
Dated: By:
-------------------- -----------------------------------------------
Xxxxxxx X. Sword, Chief People Officer
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EXECUTIVE POST-RESIGNATION RELEASE & WAIVER
THIS RELEASE is made and entered as of July 31, 2006, by Xxxx X. Xxxxxxxx
("Executive").
WHEREAS Pursuant to Executive's Separation Agreement, Release & Waiver
dated May 17, 2006 and in consideration of Executive's signing of this
Post-Resignation Release & Waiver (the "Release") and abiding by its terms,
Executive is eligible for a Post-Resignation Bonus to be paid on March 1, 2007
(or that date in 2007 otherwise selected by Applebee's for the payment of 2006
bonuses to officers), equal to but no greater than, five-twelfths (5/12) of
Executive's current 2006 bonus target multiplied by the 2006 year end BAM ("Big
Apple Metric") attainment.
Executive (on behalf of Executive and anyone claiming through or on behalf
of Executive) hereby agrees that Executive:
releases Xxxxxxxx'x International, Inc., its affiliates, subsidiaries, and
their successors and assigns, and all of their past and present employees,
officers, directors, franchisees and agents (collectively referred to herein
"Applebee's") from any and all claims, demands and causes of action which
Executive has or may have had against any of them prior to the date Executive
signs this Release, to the maximum extent permitted by law. This release
includes, but is not limited to, any and all claims, demands and causes of
action which are related to or concern: Executive's salary, bonus and benefits;
Executive's vacation and sick leave; Executive's employment and Executive's
separation from employment (which shall include any and all rights to
re-employment with Applebee's, its affiliates, its parent and its subsidiaries
and their successors and assigns); discrimination under local, state or federal
law, including but not limited to claims under the Age Discrimination in
Employment Act; the Older Workers' Benefit Protection Act; Title VII of the
Civil Rights Act of 1964; the Civil Rights Act of 1991; the Americans With
Disabilities Act; the Executive Retirement Income Security Act; and the Family
and Medical Leave Act; except that this release shall not apply to (i) all
amounts payable to Executive under this Agreement and the Consulting Agreement,
(ii) Executive's right to indemnification under the company charter, by-laws and
applicable law for Executive's acts and omissions occurring during Executive's
employment; and (iii) all vested and accrued welfare and retirement/401(k)
benefits and deferred compensation payable to Executive in accordance with the
terms of the applicable benefit plans in which Executive participates.
Executive further understands and agrees that:
1. Until Applebee's makes it publicly available to the extent required
by law or regulation, the contents of this Release are confidential. Executive's
discussions with Applebee's pertaining to this Release are considered
confidential even after the contents of this Release are made public.
"Confidential" means Executive will not communicate or allow the communication
in any manner with respect to this Release, and the discussions pertaining to
it, except that the Release may be disclosed by Executive to Executive's
immediate family members, Executive's attorney and accountant or to governmental
taxing authorities (Authorized Persons). If Executive communicates the content
of this Release to any Authorized Person, then Executive must advise such
Authorized Person of Executive's confidentiality obligations and the Authorized
Person's responsibility to comply with the same.
2. Applebee's hereby advises Executive to consult with an attorney
prior to executing this Agreement. Executive may revoke this Release within
seven (7) calendar days after Executive signs it. If not revoked, this Release
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is effective and enforceable on the eighth (8th) calendar day following the date
Executive signs this Release. If revoked, Executive understands he is not
eligible for the Post-Resignation Bonus.
3. No representations have been made to Executive by Applebee's, its
agents or legal counsel regarding the tax implications of any payments made
pursuant to this Release. All liability for federal, state, and local taxes
(including FICA) remains with Executive, unless otherwise agreed to in writing
by Applebee's, and Applebee's shall deduct all required withholdings from the
consideration payable under this Release.
4. This Release shall be construed in accordance with the laws of the
State of Kansas.
5. This Release contains the entire agreement between Executive and
Applebee's with respect to the matters contemplated by this Release. No change,
modification or waiver of any provision of this Release will be valid unless in
writing and signed by Applebee's.
6. Executive represents and agrees that Executive had at least 21 days
to consider this Release, that Executive freely and voluntarily executed this
Release, that Executive had the opportunity to consult with an attorney, that
Applebee's advised Executive to consult with an attorney, and that no promise,
inducement or agreement not expressed in this Release has been made to Executive
by Applebee's or any of the Applebee's affiliates or parent.
7. If Executive breaches any provision of this Release, or if one or
more provisions of this Release is ever determined by a court to be
unenforceable, Applebee's, at its option, will be entitled to stop any future
payment and recover from Executive the entire cash portion of the
post-resignation bonus payment previously made to Executive by Applebee's as set
forth above, plus Applebee's costs and attorneys' fees. Applebee's may also
pursue any other available remedies. Any such legal action by Applebee's shall
not be considered by Executive to be retaliatory.
8. This Release is binding on and inures to the benefit of Applebee's
successors and assigns and Executive's heirs and assigns, except that any
services to be provided by Executive under this Release shall only be performed
by Executive.
9. Any dispute or claim arising out of or relating to this Release
shall be settled by arbitration in Xxxxxxx County, Kansas, by one arbitrator in
accordance with current "National Rules for the Resolution of Employment
Disputes" or similarly described rules of the American Arbitration Association,
and judgment upon any award rendered therein may be entered in any court having
proper jurisdiction. Each party shall bear its own costs and expenses, including
attorneys' fees, related to the dispute or claim and the parties shall share
equally the costs and fees of the arbitrator; provided however, that an arbitral
award finding that one party substantially prevailed in the proceeding, may
award to that party all or any portion of its costs and expenses, including
attorney's fees and its portion of the costs and fees of the arbitrator.
Dated:
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Xxxx X. Xxxxxxxx - EXECUTIVE
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INDEPENDENT CONTRACTOR CONSULTING AGREEMENT
THIS INDEPENDENT CONTRACTOR CONSULTING AGREEMENT ("Agreement") entered
into effective as of August 1, 2006, by and between Xxxx X. Xxxxxxxx, an
individual ("Contractor") and AII Services, Inc., a Kansas corporation
("Applebee's").
BACKGROUND
X. Xxxxxxxx'x desires to engage the services of Contractor for the
purpose of consulting on marketing strategies and related matters; and
B. Contractor desires to consult with Applebee's regarding such
matters.
AGREEMENT
1. Services. During the term of this Agreement, Contractor will provide
services to Applebee's relating to marketing, advertising, menu, guest traffic
and related matters.
2. Compensation. As compensation for the services rendered by
Contractor under the terms of this Agreement, Contractor will be entitled to
receive a total fee of $95,331.00 payable in equal bi-weekly installments.
3. Independent Contractor Status. During the term of this Agreement,
Contractor will perform the duties and assignments required by this Agreement,
subject to the following:
A. Except as otherwise provided, Contractor will not be
required to devote any particular portion of time to
such services; and
B. Contractor will at all times be an independent
contractor. Contractor will have no authority to bind
Applebee's to any agreements or commitments or make
representations to third parties without the express
written consent of Applebee's; and
C. Contractor will be responsible for payment of income
and all other taxes due with respect to any payments
made by Applebee's to Contractor.
4. Term; Termination. The term of this Agreement will begin on August
1, 2006 and will terminate on October 20, 2006, unless sooner terminated in
accordance with the terms and conditions of this Agreement. Contractor may
terminate this Agreement at any time upon 15 days' written notice to Applebee's.
Applebee's will have the right at all times to terminate this Agreement for any
breach of this Agreement immediately upon determination of such breach.
5. Tools to be Provided by Contractor. Contractor will supply, at
Contractor's sole expense, all equipment, tools, technology, materials or
supplies to accomplish the work to be performed, unless due to certain
deficiencies or uniqueness of items, it is in the best interest of the parties
for Applebee's to supply any such items. Contractor acknowledges and agrees that
any equipment provided by Applebee's will remain the property of Applebee's and
Contractor bears all loss or damage to such equipment. Upon termination of this
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Agreement, Contractor will return the equipment in the condition in which it was
delivered, ordinary wear and tear excepted.
6. Location of Performance and Reimbursement of Expenses. Contractor
will perform services under this Agreement at a location of Contractor's
choosing, but will not be provided with designated office space by Applebee's or
at any Applebee's office or location. Contractor will be reimbursed for actual
and reasonable expenses incurred if air travel is required at the request of
Applebee's. Reasonable expenses include and are limited to coach air fare,
modest hotel accommodations (no deluxe or resort accommodations), and actual
meal expenses. Entertainment, clothing, or other discretionary purchases related
to travel requested by Applebee's will not be reimbursed. Travel undertaken by
Contractor that in Contractor's own judgment is required for the satisfactory
performance of services under this Agreement, will be at Contractor's own
expense.
7. Ownership of Services. During the term of this Agreement, Contractor
agrees that any product improvement to the products sold by Applebee's or its
affiliates, or any proprietary materials, quality assurance procedures,
concepts, marketing strategies, discoveries, concepts, ideas, designs, processes
methods, inventions and all copyrightable material ("Intellectual Property")
developed by Contractor in the performance of Contractor's duties, or resulting
from its observation of the operation of the Applebee's system, will be
considered the sole and exclusive property of Applebee's. To the extent
Applebee's is not automatically considered the author, owner or inventor of such
Intellectual Property, Contractor assigns all right, title and interest in and
to such Intellectual Property to Applebee's to the fullest extent permitted by
law. Contractor agrees to assign to Applebee's all right, title and interest in
all Intellectual Property created during the term of this Agreement and appoints
Applebee's its attorney in fact to execute all documents necessary to effect
such assignments. This appointment is coupled with an interest and is
irrevocable. Contractor acknowledges that the compensation paid by Applebee's
under this Agreement is adequate consideration for this assignment. Contractor
further agrees to execute any additional documents presented by Applebee's that
may be necessary to perfect title to the Intellectual Property and any
copyrights in Applebee's, or as may be required for Applebee's to register the
copyrights or any trademark in its name with the United States Patent and
Trademark Office. It is expressly understood and agreed that Applebee's rights
in the Intellectual Property include, without limitation, the right to use the
materials in such manner as Applebee's determines appropriate, including without
limitation; the right to sell or otherwise commercially exploit the materials;
the right to renew any copyright or trademark registrations of the materials and
the right to recover for any past, present and future infringements of the
materials.
8. Indemnification. Contractor agrees to indemnify and defend
Applebee's, its successors and assigns, from and against any and all loss,
damage, or expense, including attorneys fees, by reason of Contractor's
performance of its services for Applebee's. Should the Contractor receive notice
of litigation or a demand letter that reasonably would lead to litigation or any
matters that are reasonably related to Contractor's work for Applebee's,
Contractor agrees to provide immediate notification of such matters to the
Applebee's. Applebee's agrees to indemnify and defend Contractor, Contractor's
heirs and successors, from and against any and all loss, damage, or expense,
including attorneys fees, by reason of Applebee's acts or omissions under this
Agreement. Should Applebee's receive notice of litigation or a demand letter
that reasonably would lead to litigation or any matters that are reasonably
related to Contractor's work for Applebees, Applebee's agrees to provide
immediate notification of such matters to Contractor.
9. Confidentiality and Non-Disclosure. Contractor will keep
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confidential and will not disclose to any third party, without the consent of
Applebee's, any trade secret, know-how, preparation technique, recipe, design or
system of Applebee's unless Applebee's makes such information available to the
general public or unless Contractor is required to disclose such information by
appropriate judicial or governmental order. It is further understood that this
Section supplements, the confidentiality provisions of the Separation Agreement
dated May 17, 2006 by and between the parties, it being expressly understood and
agreed that the confidentiality provisions of the Separation Agreement survive
execution of this Agreement and is incorporated by reference into this
Agreement. The obligations of Contractor pursuant to this Section will survive
the termination of this Agreement.
The parties recognize that the agreements of Contractor under this
Section are special, unique and of extraordinary character, and that in the
event Contractor breaches any of these agreements, then Applebee's will be
entitled to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain damages for any breach of
this Section or to enforce Contractor's performance or to enjoin Contractor from
such breach.
10. No Assignment. This Agreement is personal in its nature and
Contractor will not, without the consent of Applebee's, assign or transfer this
Agreement or any associated rights or obligations.
11. Amendment. This Agreement may only be amended by written agreement
signed by Contractor and Applebee's.
12. Binding Agreement. This Agreement is binding upon and inures to the
benefit of the parties, their heirs, legal representatives, successors and
assigns.
13. Notices. Any and all notices required or permitted to be given
under the terms of this Agreement will be sufficient if in writing and delivered
in person as deposited in the United States Mail, postage prepaid, addressed to
the other party as follows:
If to Contractor: Xxxx X. Xxxxxxxx
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, XX 00000
If to Applebee's: AII Services, Inc.
0000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Xxxx Sword
Either party, by written notice to the other party, may change the address to
which its notices are to be given.
14. Governing Law. This Agreement will be construed and governed in all
respects in accordance with the laws of the State of Kansas.
15. Arbitration. The parties agree to binding arbitration for any
dispute arising under the terms of this Agreement. The arbitration will be held
in the greater Kansas City area. Each party will bear its own costs and
attorneys' fees, but all other costs, including arbitrators' fees and expenses
will be shared and paid equally by the parties.
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16. Ethical Conduct. Contractor agrees to conduct business on behalf of
Applebee's in an ethical manner consistent with Applebee's Code of Conduct which
has been provided to Contractor.
17. General. This Agreement constitutes the entire agreement between
Contractor and Applebee's with respect to the subject matter hereof, and
supersedes all proposals, oral or written, and all other communications between
the parties, with respect to such subject matter. This Agreement may be signed
in counterparts and each counterpart with a hand-written signature, whether an
original or an electronic data text (including telegram, telex, facsimile,
electronic data interchange and electronic mail) is considered an original and
all counterparts constitute one and the same instrument.
Signed by:
AII Services, Inc. Xxxx X. Xxxxxxxx
By: By:
Name: Date:
Title:
Date:
4
