Via Hand Delivery David J. Deno
Exhibit
99.1
|
November
17,
2005
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Via
Hand Delivery
Xxxxx
X.
Xxxx
0000
Xxxxxxxxxxx Xxxx
Xxxxxxxxxx,
XX 00000
Dear
Xxxxx:
This
letter agreement (the “Letter Agreement”), effective as of October 13, 2005 (the
“Effective Date”), confirms the arrangements relating to your separation for
personal family reasons from YUM! Brands, Inc. and its subsidiaries and
affiliates (hereinafter referred to collectively as the “Company”). If you
decide to accept the separation arrangements described herein by signing this
Letter Agreement, you will be entitled to receive no further payments or
benefits from the Company, except as specifically set forth in this Letter
Agreement.
Status
Your
status as a Company employee, including your status as the Chief Operating
Officer of YUM! Brands, Inc., shall be as described in this section. On October
17, 2005 (your “Resignation Date”), you submitted a written letter of
resignation indicating that you voluntarily resign from the Company effective
as
of the close of business on Thursday, February 16, 2006 (your “Leave
Commencement Date”). The period of time from your Resignation Date through your
Leave Commencement Date is referred to as the “Transition Period” in this Letter
Agreement. During the Transition Period, you shall continue to be an employee
of
the Company and the Chief Operating Officer of YUM! Brands, Inc. Your duties
during the Transition Period shall be only those duties assigned by either
Xx.
Xxxxx X. Xxxxx or Xx. Xxxx Xxxxxxxx. You agree that during the Transition
Period, you will devote your best efforts to and for the benefit of the Company
in completing those assignments and performing those duties that either Xx.
Xxxxx or Xx. Xxxxxxxx assigns you.
Beginning
on your Leave Commencement Date and continuing through January 1, 2007 (your
“Termination Date”), you will be placed on a paid leave of absence during which
you will remain available for special projects assigned to you by Xx. Xxxxx
or
Xx. Xxxxxxxx and to respond to reasonable requests for assistance related to
matters arising from or related to your employment. The period of time from
your
Leave Commencement Date through your Termination Date is referred to as the
“Paid Leave of Absence Period” in this Letter Agreement. Effective on the Leave
Commencement Date, you shall no longer be the Chief Operating Officer of YUM!
Brands, Inc. and you no longer (a) will have any duties to perform for the
Company, except as otherwise provided in this Letter Agreement; (b) shall
represent to third parties that you are authorized to act on the Company’s
behalf; (c) will have the authority to act on the Company’s behalf (and thus you
will be without authority to bind or create liability on behalf of the Company);
and (d) will have the authority to incur any expenses or obligations on behalf
of the Company.
Salary
and Separation Pay
During
the Transition Period, you will continue to receive a base salary at your
current bi-weekly rate of pay of $20,576.92 ($535,000 annually) less applicable
federal and state taxes and payroll deductions. If you sign and do not later
revoke the Waiver and Release of All Claims and Covenant Not to Xxx attached
to
this Letter Agreement as Attachment II (“Release II”) and subject to the offset
provisions set forth in the section entitled Mitigation
and Offset,
the
Company shall continue to pay you your base salary during your Paid Leave of
Absence Period. The payments that the Company has agreed to provide you shall
be
made in installments in accordance with the Company’s regular payroll payment
schedule. As
of the
Effective Date, you will no longer be entitled to any other payments for salary,
except as set forth in this Letter Agreement.
Bonus
Your
bonus for 2005 will be no greater than $385,000. Your entitlement to this bonus
and the actual amount of such bonus shall be in the sole discretion of Xx.
Xxxxx
X. Xxxxx and the Compensation Committee of the Board of Directors of YUM!
Brands, Inc. (the “Compensation Committee”). Such bonus shall be paid on or
around July 1, 2006, and in the manner as Xx. Xxxxx and the Compensation
Committee shall establish. If Xx. Xxxxx or Xx. Xxxxxxxx consent to your
employment with another company prior to July 1, 2006, this bonus will be paid
to you as soon as practicable following such consent. You will not receive
a
2006 bonus.
Benefits
and Benefits Continuation
Vacation.
You
will receive a lump sum payment for any earned and accrued vacation which you
have not used as of your Leave Commencement Date. You shall not accrue any
vacation during your Paid Leave of Absence Period.
Personal
Benefits (Health, etc.).
In
consideration for your signing and not later revoking Release II, you and your
dependents will continue to be covered under the Company’s benefits coverages
during the Paid Leave of Absence Period (e.g., medical insurance, dental
insurance, and vision/hearing insurance except, however, as of your Leave
Commencement Date, you will no longer be eligible to receive accident insurance,
group life insurance, dependent life insurance, disability insurance and group
legal services; to the extent allowed under the policy, you may exercise your
right to convert life insurance coverage to an individual policy); provided,
however, if you become reemployed with another employer and are eligible to
receive medical, and other welfare benefits under another employer-provided
plan, the medical and other welfare benefits described herein shall be secondary
to those provided under such other plans. As of January 1, 2007, certain
benefits will be available to you at group rates pursuant to COBRA. Please
contact the Company’s Benefits Department at (000) 000-0000 for details of this
and any other rights you may have under the Company’s benefit plans or
programs.
Retirement
Plan.
You
will continue to participate in the YUM! Brands Retirement Plan and the
Company’s Pension Equalization Plan through your Termination Date. At that time,
you will receive a letter which outlines your accrued pension benefits and
the
options available to you with respect to that benefit. If you have any questions
or would like additional information, please contact Xxxx Xxxxxxxx at (000)
000-0000.
YUM!
Brands 401(k) Plan.
If you
are currently enrolled in the YUM! Brands 401(k) Plan, you may continue to
participate in that plan through your Leave Commencement Date. Thereafter,
you may continue to participate in this plan in accordance with its terms,
however, you will not be entitled to make any additional contributions. After
the Leave Commencement Date, you may take a lump sum or installment distribution
of your plan account balance. You will receive more information regarding your
options under the 401(k) plan as your Leave Commencement Date approaches. In
the
meantime, if you have any questions, please contact Xxxx Xxxxxx at (000)
000-0000.
Executive
Income Deferral Program.
Any
amounts you have deferred under the Executive Income Deferral Program will
be
paid to you as of your Termination Date in accordance with the terms of your
elections under this program. You will not be able to defer any additional
amounts under this program after your Leave Commencement Date. The elections
you
made for distribution are irrevocable.
Long
Term Incentive Plans.
Under
the YUM! Brands Long Term Incentive Plan, you shall continue to vest in your
YUM! Stock Options through the Leave Commencement Date, provided (1) you comply
with the requirements in the section entitled Mitigation
and Offset
below,
(2) you perform the tasks assigned to you which will include work that
encompasses at least ten (10) hour per week during the Transition Period, (3)
you execute and not later revoke the Waiver and Release of All Claims and
Covenant Not to Xxx attached to this Letter Agreement as Attachment I (“Release
I”), and (4) you otherwise comply with your duties and responsibilities to the
Company as required under this Letter Agreement. You agree that you will
exercise your vested options and sell the underlying shares pursuant to a 10b5-1
plan that you executed in October 2005 which required you to exercise your
vested options ratably each month through February 16, 2006. In the event that
your 10b5-1 plan is suspended in accordance with the terms of the plan, the
Company will extend your Leave Commencement Date until the reason for the
suspension of the plan is lifted so that you may exercise any unexercised vested
stock options; provided, of course, that you remain actively employed with
the
Company through the extended Leave Commencement Date. As of your Leave
Commencement Date, you shall forfeit all unvested and/or unexercised
options.
Company
Car and Perquisites.
Except
as otherwise specified in this Letter Agreement and provided you execute and
not
later revoke the Release II, you may continue to participate in the Company’s
Executive Car Program (the cash option) and other Company perquisites that
the
Company provides its senior executives through December 31, 2006.
Secretarial
Support Services.
As of
the Leave Commencement Date and as consideration for your signing and not later
revoking Release I, you will be provided secretarial support until your
Termination Date, which will be limited to document preparation and phone
answering services. The type, scope, provider and extent of these services
will
be in the Company’s sole discretion. Such services can be coordinated through
Xxxx Xxxxxxxx.
Mitigation
and Offset
You
shall
not be required to seek other employment at any time, whether before or after
the Termination Date. However, if you accept any other employment outside of
academia on or before July 1, 2006, without the prior written consent of Xx.
Xxxxx or Xx. Xxxxxxxx, the following provisions apply:
| a) | You shall cease vesting in your YUM! Stock Options, to the extent that such options are unvested as of the date you accept such other employment, and you shall not be permitted to exercise any vested option that you have not exercised prior to the date you accept such other employment. You acknowledge and agree that to the extent that this subsection (a) conflicts with any provision in any grant agreement to which you are a party or any provision in any applicable plan document, the rights and responsibilities in this subsection (a) shall govern and prevail. |
| b) | You shall not be eligible to receive the 2005 bonus. |
| c) | The Company shall cease paying you your base salary. |
|
d)
|
The
Company shall cease providing you the benefit coverages enumerated
in the
subsection entitled Personal Benefits (Health, etc.),
except where federal law entitles you to continued coverage
thereunder.
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| e) | You shall cease being eligible to participate in the Company’s Executive Car Program and other Company perquisites. |
| f) | The Company shall cease providing you secretarial support services. |
References
As
soon
as practicable after the Effective Date, the Company shall provide you a written
recommendation in the form written and provided by the Company. The Company
shall respond to any verbal reference inquiry consistent with such written
recommendation.
Return
of Company Property
Any
credit cards issued to you by the Company will be discontinued as of the Leave
Commencement Date. You agree that by the Leave Commencement Date, you will
return to the Company all Company information and related documents, reports,
files (including all data stored in computer memory and/or other storage media),
memoranda and records. You further certify that you will return to the Company
all portable computers and related equipment; card-key passes; door and file
keys; computer access codes; software and all other physical property that
you
received, prepared or helped prepare in connection with your employment by
the
Company. You also agree that you will not retain any copies, duplicates,
reproductions or excerpts of the above items.
Confidentiality
In
the course of your employment with the Company, you have received information
which is proprietary and confidential. Proprietary
and confidential information consists of the Company’s unique
plans
and strategies, including, but not limited to, those relating to advertising
and
marketing, promotions, new products, operations, procurement, franchising,
new
decors, new buildings, unit divestiture, cost saving, new technology, recruiting
and staffing, and financing. Thus, while you may engage in similar activities
for other companies, including competitors of the Company (except as otherwise
restricted pursuant to the section entitled Restrictions
on Competition
below),
and may make use of general knowledge you have acquired in running a similar
business, you must be careful not to use the Company’s specific plans or unique
learnings. For this purpose, proprietary and confidential information does
not
include information which is or becomes already known to the persons to whom
you
would discuss it through no fault of your own. You
agree that you will hold and maintain all such information in confidence, and
you will not use in any manner whatsoever (other than within the scope of your
employment with the Company) or disclose any of such information to any third
party except (a) with the prior written consent of the Company, or (b) as
legally required after notice by you to the Company of such legally required
disclosure.
Nonsolicitation
You
agree
that as of the Effective Date and continuing through December 31, 2007, you
will
neither directly nor indirectly:
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(i)
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solicit
any employees from the Company to cease remaining employed with the
Company, except with the prior consent of the Company;
or
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(ii)
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commit
any act which diverts customers, franchisees, or suppliers from any
of the
Company’s businesses or which disrupts or impairs the Company’s relations
with customers, franchisees or suppliers.
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You
agree
that the promises you have made in this section are reasonable with respect
to
their duration and description and with respect to the consideration received.
Nondisparagement
You
agree
that you will not make any written or oral remarks which criticize, disparage
or
injure the reputation of the Company, its management, its employees or its
practices.
Restrictions
On Competition
You
agree
that in view of your current position with YUM! Brands, Inc. (Chief Operating
Officer) and your prior positions with and service to the Company and in
exchange for the consideration set forth in this Letter Agreement, beginning
on
the Effective Date and continuing through December 31, 2007, you shall not,
on
behalf of yourself or any other person, company, employer, or entity, obtain
executive level employment with, consult for, represent, or enter into any
relationship with XxXxxxxx’x Corporation, Wendy’s Corporation, Burger King
Corporation, Papa John's Pizza, Domino's Pizza, Little Caesar's Pizza, Boston
Chicken, Boston Market, Chick-Fil-A, Church’s Chicken, Popeye’s Chicken, El
Pollo Loco, Del Taco, Taco Bueno, Taco Time, Carl’s Jr., Xxxxxx’x,
Xxxx-in-the-Box, Captain D’s, Sonic Corporation, or any
other regional or national quick service restaurant organization that (1) is
headquartered in the United States, (2) has more than 10 restaurant units,
and
(3) operates a Mexican food, chicken, pizza or fish concept.
Further,
you agree that the restrictions contained herein are reasonable with respect
to
their duration and scope and necessary for the protection of the Company’s
legitimate interests, including its Company assets, confidential information
and
trade secrets, its client, customer and vendor relationships, and the stability
of its work force.
Irreparable
Harm
You
acknowledge that a breach by you of the terms of the sections entitled
Confidentiality,
Nonsolicitation,
Nondisparagement, and/or
Restrictions
On Competition above,
would result in material and irreparable injury to the Company and that it
would
be difficult or impossible to establish the full monetary value of such damage.
If you breach the above-mentioned Restrictions on Competition section, in
addition to any other common law or equitable remedies available as liquidated
damages, you shall pay the Company (a) one hundred percent (100%) of the YUM!
Stock Option gains you realize from your Resignation Date until the date of
your
breach if you breach such section on or before your Leave Commencement Date;
and
(b) seventy-five percent (75%) of the YUM! Stock Option gains you realize from
your Resignation Date until the date of your breach if you breach such provision
after your Leave Commencement Date. In addition to the liquidated damages set
forth in the preceding sentence, the Company shall be entitled to injunctive
relief in the event of any such breach. Furthermore, you agree that should
the
Company have to enforce the sections entitled Confidentiality, Nonsolicitation,
Nondisparagement, and/or Restrictions on Competition or the terms of the
previous section, you will pay the attorneys’ fees and costs and expenses of
litigation incurred by the Company to successfully enforce any of those
sections. The undertakings contained in this section shall survive the
termination of other arrangements set forth in this Letter
Agreement.
Availability
You
agree
that you will make yourself reasonably available for interview, deposition,
and
will agree to appear as a witness at trial or, at the election of the Company,
provide a sworn statement for any matters in which the Company is a party and
for which you may have any knowledge of any relevant facts. The Company agrees
to reimburse you for any out-of-pocket expense you incur as a result of such
assistance, including, but not limited to, costs of travel. Nothing in this
Letter Agreement shall be construed in any way to limit or otherwise influence
the scope or nature of your testimony in any such proceeding or to discourage
you in any way from providing testimony which is honest and sincere criticism
of
any of the Company's policies or practices. You agree not to withhold from
the
Company any information, whether damaging or favorable, relevant to any such
matters.
Death
In
the
event you die before your Leave Commencement Date, your designated beneficiaries
and/or estate, as appropriate, will be entitled to receive all benefits and
compensation under the plans and programs outlined herein in which you
participate at such time in accordance with the terms and conditions of each
such plan or program and this Letter Agreement.
Releases
I and II
You
agree
that as a condition to your receiving the continued option vesting and
secretarial services provided under this Letter Agreement, you will sign, date
and return to Xxxx Xxxxxxxx (and not later revoke) Release I no later than
twenty-one (21) days after your receipt of this letter.
You
agree
that as a condition to your receiving the separation pay, continued benefits,
continued perquisites and other valuable rights and benefits that the Company
agrees to provide you following your Leave Commencement Date, you will sign,
date and return to Xxxx Xxxxxxxx (and not later revoke) Release II no sooner
than your Leave Commencement Date but not later than three (3) days after your
Leave Commencement Date.
You
agree
and understand that payment of the applicable benefits required under this
Letter Agreement will not begin (a) if you have materially breached any term
of
this Letter Agreement, and (b) until at least eight (8) days after we receive
from you the executed Release I or Release II, as the case may be. In the event
that you materially breach any term of either this Letter Agreement or the
attached Releases at any time, your rights to such payment under this Letter
Agreement shall forever cease.
Rights
to Consult with Attorney; Offer Period; Revocation
Because
the arrangements discussed in this Letter Agreement and Releases affect
important rights and obligations, we advise you to consult with an attorney
of
your choice at your own expense before you sign this Letter Agreement and the
Releases. If you choose to sign this Letter Agreement, you will be entitled
to
receive no further payments or benefits from the Company, except as specifically
set forth in this Letter Agreement. If you do not wish to accept the offers
contained in this Letter Agreement, you do not have to do anything.
To
give
you time to consider these arrangements, we will hold this offer open for
twenty-one (21) days. If I do not receive from you a signed and dated copy
of
this Letter Agreement, this Letter Agreement shall be cancelled and void, and
neither you nor the Company shall have any rights or obligations under it.
For
a
period of up to and including seven (7) days after the date you sign the
attached Releases, you may revoke them entirely. If you decide to revoke either
or both Releases, you must deliver to the undersigned a signed notice of
revocation on or before the end of this seven-day (7) period. The Company shall
not provide you the pay, benefits and other rights that the Company agrees
to
provide you after before the end of the applicable seven-day (7) revocation
period. Upon delivery to the undersigned of a timely notice of revocation,
this
Letter Agreement shall be cancelled and void, and neither you nor the Company
shall have any rights or obligations under it.
Miscellaneous
This
Letter Agreement contains all of the understandings and representations between
the Company and you pertaining to your separation from the Company and
supersedes all previous undertakings and agreements, whether oral or in writing,
between the Company and you on the same subject. In particular, you understand
and agree that upon executing this letter agreement you will no longer be
entitled to any payment on account of a “change in control” of the Company under
the severance agreement between you and the Company and approved by the
Company’s Board of Directors. No provision of this Letter Agreement may be
changed or waived unless such change or waiver is agreed to in writing, signed
by you and a duly authorized employee of the Company. Except as otherwise
specifically provided in this Letter Agreement, no waiver by either the Company
or you of any breach by the other of any condition or provision shall be deemed
a waiver of a similar or dissimilar provision or condition at the same time
or
any prior or subsequent time.
Anything
to the contrary herein notwithstanding, the Company shall, and is hereby
authorized to, withhold or deduct from any amounts payable by the Company to
you, your beneficiary or your legal representative under this Letter Agreement,
any federal, state or municipal taxes, social security contributions or other
amounts required to be withheld by law, and to remit such amounts to the proper
authorities. The Company is also hereby authorized to withhold or deduct
appropriate amounts with respect to any benefit plans or programs or other
elections made by you. If any taxing body determines that amounts should have
been withheld from the payments provided for by this Letter Agreement, you
acknowledge and assume all responsibility for the payment of all such taxes
and
agree to indemnify and hold the Company harmless for the payment of any such
taxes, the failure to withhold, and any interest or penalties. You agree to
indemnify the Company at all times after the Effective Date for any liabilities
arising out of or related to this agreement.
No
rights
or obligations under this Letter Agreement can be assigned or transferred by
you, except as they may be transferred by will or by operation of law. This
Letter Agreement shall be binding upon and shall be for the benefit of the
Company, its successors and assigns and you and, in the event of your death,
your estate or other legal representative.
In
the
event that any portion of this Letter Agreement shall be determined to be
invalid or unenforceable for any reason, the remaining portions of the Letter
Agreement will be unaffected thereby and will remain in full force and effect
to
the fullest extent permitted by law, except that if any portion of either
Release is declared invalid or unenforceable for any reason, then, at the
Company’s option, the whole agreement may be declared null and void and you
shall immediately return all benefits provided to you under this Letter
Agreement.
This
Letter Agreement shall be deemed a contract made under, and for all purposes
to
be governed by and construed in accordance with, the laws of the Commonwealth
of
Kentucky, without reference to any conflicts of laws provisions. The captions
are utilized for convenience only, and do not operate to explain or limit the
provisions of this Letter Agreement.
Except
where the Company elects, in its sole discretion, to enforce any provision
of
this Letter Agreement with respect to the Restrictions on Competition or either
Release in state or federal court, the parties agree promptly, and in any event
within 90 days, to resolve any dispute arising out of this Letter Agreement,
through binding confidential arbitration conducted in Louisville, Kentucky,
in
accordance with the National Rules for the Resolution of Employment Disputes
of
the American Arbitration Association (the “AAA”), one neutral arbitrator shall
be chosen in accordance with AAA rules to arbitrate any such dispute. The
parties irrevocably consent to such jurisdiction for purposes of the
arbitration, and judgment may be entered thereon in any state or federal court
in the same manner as if the parties were residents of the state or federal
district in which the judgment is sought to be entered. The arbitrator shall
charge the reasonable attorneys’ fees, expenses and costs of the substantially
prevailing party to the other party, but in an amount not to exceed one-half
of
the value of the award.
The
language of all parts of this Letter Agreement shall in all cases be construed
as a whole, according to its fair meaning, and not strictly for or against
either party. The provisions of this Letter Agreement shall survive any
termination of this Letter Agreement when necessary to effect the intent and
terms of this Letter Agreement expressed herein. Nothing in this Letter
Agreement shall be construed as an admission by you or the Company of any
wrongdoing by you, the Company or any employee of the Company.
By
signing below you acknowledge and agree that you have had the opportunity to
review this Letter Agreement and the attached Releases and to consult with
an
attorney about their terms, that you fully understand all documents, that you
are not coerced into signing them, and that you signed them (or will sign them)
knowingly and voluntarily. You also acknowledge that you have not received
any
promise or inducement to sign this Letter Agreement or either Release that
is
not expressly set forth herein. Please indicate your understanding and
acceptance of this Letter Agreement by signing below.
Very
truly yours,
By: _________________________
Xxxx
Xxxxxxxx
I
agree
to and accept the terms and provisions of the foregoing Letter
Agreement.
__________________________
Xxxxx
X.
Xxxx
Date:______________________
ATTACHMENT
I
WAIVER
AND RELEASE OF ALL CLAIMS AND COVENANT NOT TO XXX
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1.
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RELEASE.
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In
consideration for my election to receive the continued option vesting and
secretarial services that YUM! BRANDS, INC. (the “Company”) agreed to provide me
as of my Resignation Date and as described in the Letter Agreement of November
17, 2005 (the “Letter Agreement”), I, Xxxxx X. Xxxx, on behalf of myself and my
heirs, executors, administrators, attorneys and assigns, hereby waive, release
and forever discharge the Company together with its subsidiaries, divisions
and
affiliates, whether direct or indirect, its and their joint ventures and joint
venturers (including their respective directors, officers, employees,
shareholders, partners and agents, past, present, and future), and each of
its
and their respective successors and assigns (hereinafter collectively referred
to as “Releasees”), from any and all known or unknown actions, causes of action,
claims or liabilities of any kind which have or could be asserted against the
Releasees arising out of or related to my employment with and/or separation
from
employment with the Company and/or any of the other Releasees and/or any other
occurrence up to and including the date of this Release, including but not
limited to:
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(a)
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claims,
actions, causes of action or liabilities arising under Title VII
of the
Civil Rights Act, as amended, the Age Discrimination in Employment
Act, as
amended (the “ADEA”), including the Older Workers Benefit Protection Act,
as amended (the “OWBPA”), the Rehabilitation Act, as amended, the
Americans with Disabilities Act, as amended, the Family and Medical
Leave
Act, as amended, and/or any other federal, state, municipal, or local
employment discrimination statutes or ordinances (including, but
not
limited to, claims based on age, sex, attainment of benefit plan
rights,
race, color, religion, national origin, marital status, sexual
orientation, ancestry, harassment, parental status, handicap, disability,
retaliation, and veteran status);
and/or
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(b)
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claims,
actions, causes of action or liabilities arising under any other
federal,
state, municipal, or local statute, law, ordinance or regulation
(including, but not limited to, the Employee Retirement Income Security
Act, as amended, the Xxxxxxxx-Xxxxx Act of 2002, and the WARN Act);
and/or
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(c)
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any
claims that the Company is in any way obligated for any reason to
pay me
damages, expenses, litigation costs (including attorneys’ fees), wages,
bonuses, severance pay, stock options, long or short term incentive
pay,
vacation pay, separation pay, termination pay, any type of payments
or
benefits based on my separation from employment, incentive pay,
commissions, disability benefits or sick pay, life insurance, or
any other
employee benefits of any kind, compensatory damages, punitive damages,
and/or interest; and/or
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(d)
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any
other claim whatsoever including, but not limited to, claims based
upon
breach of contract, wrongful termination, retaliatory discharge,
defamation, intentional infliction of emotional distress, tort, personal
injury, invasion of privacy, violation of public policy, negligence
and/or
any other common law, statutory or other claim whatsoever arising
out of
or relating to my employment with and/or separation from employment
with
the Company and/or any of the other
Releasees.
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Excluded
from this Release and Covenant Not to Xxx is any claim or right which cannot
be
waived by law, including all claims arising after the date of this Release
and
Covenant Not to Xxx.
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2.
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COVENANT
NOT TO XXX.
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I
also
agree never to xxx any of the Releasees or become party to a lawsuit on the
basis of any claim arising out of or related to my employment with and/or
separation from employment with the Company and/or any of the other Releasees.
Although I am releasing claims that I may have under the OWBPA and ADEA, I
understand that I may challenge this covenant not to xxx under the ADEA. I
also
understand that I have the right to file a discrimination charge with a
governmental agency, subject to the waiver of my right to any monetary recovery
in connection with such a charge as provided in section 4, WAIVER
OF RECOVERY.
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3.
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BREACH
OF COVENANT NOT TO
XXX.
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I
further
acknowledge and agree that if I breach the provisions of paragraph (2) above,
then (a) the Company shall be entitled to apply for and receive an injunction
to
restrain any violation of paragraph (2) above, (b) the Company shall not be
obligated to continue payment of the Letter Agreement benefits to me, (c) I
shall be obligated to pay to the Company its costs and expenses in enforcing
this Release and Covenant Not to Xxx and defending against such lawsuit
(including court costs, expenses and reasonable legal fees), and (d) as an
alternative to (c), at the Company’s option, I shall be obligated upon
demand to repay to the Company all but $100 of
the
Letter Agreement benefits paid to me. I further agree that the foregoing
covenants in this paragraph (3) shall not affect the validity of this Release
and Covenant Not to Xxx and shall not be deemed to be a penalty nor a
forfeiture.
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4.
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WAIVER
OF RECOVERY.
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To
the
extent permitted by law, I further waive my right to any monetary recovery
should any federal, state, or local administrative agency pursue any claims
on
my behalf arising out of or related to my employment with and/or separation
from
employment with the Company and/or any of the other Releasees.
|
5.
|
WAIVER
AND
ACKNOWLEDGEMENT.
|
I
further
waive, release, and discharge Releasees from any reinstatement rights which
I
have or could have and I acknowledge that I have not suffered any on-the-job
injury for which I have not already filed a claim.
|
6.
|
BREACH
OF LETTER
AGREEMENT.
|
I
further
agree that if I breach any provision of the Letter Agreement, then (a) the
Company shall be entitled to apply for and receive an injunction to restrain
such breach, (b) the Company shall not be obligated to continue payment of
the
Letter Agreement benefits to me, and (c) I shall be obligated to pay to the
Company its costs and expenses in enforcing the provisions of the Letter
Agreement (including court costs, expenses and reasonable legal
fees).
|
7.
|
ACKNOWLEDGEMENT
OF TIME TO CONSIDER AND RIGHT TO CONSULT AN
ATTORNEY.
|
I
acknowledge that I have been given at least twenty-one (21) days to consider
this Release and Covenant Not to Xxx thoroughly and I was encouraged to consult
with my personal attorney, at my own expense, if desired, before signing
below.
|
8.
|
REVOCATION
OF RELEASE AND COVENANT NOT TO
XXX.
|
I
understand that I may revoke this Release and Covenant Not to Xxx within seven
(7) days after its signing and that any revocation must be made in writing
and
submitted within such seven (7) day period to Xxxx Xxxxxxxx at the Company.
I
further understand that if I revoke this Release and Covenant Not to Xxx, I
shall not receive the Letter Agreement benefits.
|
9.
|
ACKNOWLEDGEMENT
OF CONSIDERATION.
|
I
also
understand that the Letter Agreement benefits which I will receive in exchange
for signing and not later revoking this Release and Covenant Not to Xxx are
in
addition to anything of value to which I already am entitled.
|
10.
|
ACKNOWLEDGEMENT
OF RELEASE OF
CLAIMS.
|
I
FURTHER
UNDERSTAND THAT THIS RELEASE AND COVENANT NOT TO XXX INCLUDES A RELEASE OF
ALL
KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED CLAIMS TO DATE.
|
11.
|
SEVERABILITY.
|
I
acknowledge and agree that if any provision of this Release and Covenant Not
to
Xxx is found, held or deemed by a court of competent jurisdiction to be void,
unlawful or unenforceable under any applicable statute or controlling law,
the
remainder of this Release and Covenant Not to Xxx shall continue in full
force and effect.
|
12.
|
GOVERNING
LAW/ARBITRATION OF
DISPUTES.
|
This
Release and Covenant Not to Xxx shall be interpreted and enforced according
to
the laws of the Commonwealth of Kentucky, without regard to any conflict of
laws
provisions, except to the extent superseded by applicable federal law. Except
where the Company or any Releasee elects, in its sole discretion, to enforce
any
provision of the Letter Agreement or this Release and Covenant Not to Xxx in
state or federal court, I agree promptly, and in any event within ninety (90)
days, to resolve any dispute arising out of this Release and Covenant Not to
Xxx, through binding confidential arbitration conducted in Louisville, Kentucky,
in accordance with the National Rules for the Resolution of Employment Disputes
of the American Arbitration Association (the “AAA”); provided, one neutral
arbitrator shall be chosen in accordance with AAA rules to arbitrate any such
dispute. I irrevocably consent to such jurisdiction for purposes of the
arbitration, and judgment may be entered thereon in any state or federal court
in the same manner as if I were a resident of the state or federal district
in
which said judgment is sought to be entered. Each party shall be responsible
for
its own legal fees, costs and expenses.
|
13.
|
ACKNOWLEDGEMENT
OF UNDERSTANDING.
|
I
further
acknowledge and agree that I have carefully read and fully understand all of
the
provisions of this Release and Covenant Not to Xxx, that I voluntarily enter
into this Release and Covenant Not to Xxx by signing below, and that if I choose
to do so in less than twenty-one (21) days, I do so of my own free will and
without duress or coercion by the Company.
_____________________
Xxxxx
X.
Xxxx
______________________
(Date)
Please
return to:
Xxxx
Xxxxxxxx
Chief
People Officer
YUM!
Brands, Inc.
0000
Xxxxxxxx Xxxx
Xxxxxxxxxx,
XX 00000
ATTACHMENT
II
WAIVER
AND RELEASE OF ALL CLAIMS AND COVENANT NOT TO XXX
|
1.
|
RELEASE.
|
In
consideration for my election to receive the separation pay, continued benefits
and continued perquisites following my Leave Commencement Date described in
the
Letter Agreement of November 17, 2005 (the “Letter Agreement”), I, Xxxxx X.
Xxxx, on behalf of myself and my heirs, executors, administrators, attorneys
and
assigns, hereby waive, release and forever discharge YUM! BRANDS, INC. (the
“Company”) together with the Company’s subsidiaries, divisions and affiliates,
whether direct or indirect, its and their joint ventures and joint venturers
(including their respective directors, officers, employees, shareholders,
partners and agents, past, present, and future), and each of its and their
respective successors and assigns (hereinafter collectively referred to as
“Releasees”), from any and all known or unknown actions, causes of action,
claims or liabilities of any kind which have or could be asserted against the
Releasees arising out of or related to my employment with and/or separation
from
employment with the Company and/or any of the other Releasees and/or any other
occurrence up to and including the date of this Release, including but not
limited to:
(a)
claims,
actions, causes of action or liabilities arising under Title VII of the Civil
Rights Act, as amended, the Age Discrimination in Employment Act, as amended
(the “ADEA”), including the Older Workers Benefit Protection Act, as amended
(the “OWBPA”), the Rehabilitation Act, as amended, the Americans with
Disabilities Act, as amended, the Family and Medical Leave Act, as amended,
and/or any other federal, state, municipal, or local employment discrimination
statutes or ordinances (including, but not limited to, claims based on age,
sex,
attainment of benefit plan rights, race, color, religion, national origin,
marital status, sexual orientation, ancestry, harassment, parental status,
handicap, disability, retaliation, and veteran status); and/or
(b)
claims, actions, causes of action or liabilities arising under any other
federal, state, municipal, or local statute, law, ordinance or regulation
(including, but not limited to, the Employee Retirement Income Security Act,
as
amended,
the Xxxxxxxx-Xxxxx Act of 2002, and the WARN Act); and/or
(c)
any claims that the Company is in any way obligated for any reason to pay me
damages, expenses, litigation costs (including attorneys’ fees), wages, bonuses,
severance pay, stock options, long or short term incentive pay, vacation pay,
separation pay, termination pay, any type of payments or benefits based on
my
separation from employment, incentive pay, commissions, disability benefits
or
sick pay, life insurance, or any other employee benefits of any kind,
compensatory damages, punitive damages, and/or interest; and/or
(d) any
other claim whatsoever including, but not limited to, claims based upon breach
of contract, wrongful termination, retaliatory discharge, defamation,
intentional infliction of emotional distress, tort, personal injury,
invasion of
privacy, violation of public policy, negligence and/or any other common law,
statutory or other claim whatsoever arising out of or relating to my employment
with and/or separation from employment with the Company and/or any
of the other Releasees.
Excluded
from this Release and Covenant Not to Xxx is any claim or right which cannot
be
waived by law, including all claims arising after the date of this Release
and
Covenant Not to Xxx.
|
2.
|
COVENANT
NOT TO XXX.
|
I
also
agree never to xxx any of the Releasees or become party to a lawsuit on the
basis of any claim arising out of or related to my employment with and/or
separation from employment with the Company and/or any of the other Releasees.
Although I am releasing claims that I may have under the OWBPA and ADEA, I
understand that I may challenge this covenant not to xxx under the ADEA. I
also
understand that I have the right to file a discrimination charge with a
governmental agency, subject to the waiver of my right to any monetary recovery
in connection with such a charge as provided in section 4, WAIVER
OF RECOVERY.
|
3.
|
BREACH
OF COVENANT NOT TO
XXX.
|
I
further
acknowledge and agree that if I breach the provisions of paragraph (2) above,
then (a) the Company shall be entitled to apply for and receive an injunction
to
restrain any violation of paragraph (2) above, (b) the Company shall not be
obligated to continue payment of the Letter Agreement benefits to me, (c) I
shall be obligated to pay to the Company its costs and expenses in enforcing
this Release and Covenant Not to Xxx and defending against such lawsuit
(including court costs, expenses and reasonable legal fees), and (d) as an
alternative to (c), at the Company’s option, I shall be obligated upon
demand to repay to the Company all but $100 of
the
Letter Agreement benefits paid to me. I further agree that the foregoing
covenants in this paragraph (3) shall not affect the validity of this Release
and Covenant Not to Xxx and shall not be deemed to be a penalty nor a
forfeiture.
|
4.
|
WAIVER
OF RECOVERY.
|
To
the
extent permitted by law, I further waive my right to any monetary recovery
should any federal, state, or local administrative agency pursue any claims
on
my behalf arising out of or related to my employment with and/or separation
from
employment with the Company and/or any of the other Releasees.
|
5.
|
WAIVER
AND
ACKNOWLEDGEMENT.
|
I
further
waive, release, and discharge Releasees from any reinstatement rights which
I
have or could have and I acknowledge that I have not suffered any on-the-job
injury for which I have not already filed a claim.
|
6.
|
BREACH
OF LETTER
AGREEMENT.
|
I
further
agree that if I breach any provision of the Letter Agreement, then (a) the
Company shall be entitled to apply for and receive an injunction to restrain
such breach, (b) the Company shall not be obligated to continue payment of
the
Letter Agreement benefits to me, and (c) I shall be obligated to pay to the
Company its costs and expenses in enforcing the provisions of the Letter
Agreement (including court costs, expenses and reasonable legal
fees).
|
7.
|
ACKNOWLEDGEMENT
OF TIME TO CONSIDER AND RIGHT TO CONSULT AN
ATTORNEY.
|
I
acknowledge that I have been given at least twenty-one (21) days to consider
this Release and Covenant Not to Xxx thoroughly and I was encouraged to consult
with my personal attorney, at my own expense, if desired, before signing
below.
|
8.
|
REVOCATION
OF RELEASE AND COVENANT NOT TO
XXX.
|
I
understand that I may revoke this Release and Covenant Not to Xxx within seven
(7) days after its signing and that any revocation must be made in writing
and
submitted within such seven (7) day period to Xxxx Xxxxxxxx at the Company.
I
further understand that if I revoke this Release and Covenant Not to Xxx, I
shall not receive the Letter Agreement benefits.
|
9.
|
ACKNOWLEDGEMENT
OF CONSIDERATION.
|
I
also
understand that the Letter Agreement benefits which I will receive in exchange
for signing and not later revoking this Release and Covenant Not to Xxx are
in
addition to anything of value to which I already am entitled.
|
10.
|
ACKNOWLEDGEMENT
OF RELEASE OF
CLAIMS.
|
I
FURTHER
UNDERSTAND THAT THIS RELEASE AND COVENANT NOT TO XXX INCLUDES A RELEASE OF
ALL
KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED CLAIMS TO DATE.
|
11.
|
SEVERABILITY.
|
I
acknowledge and agree that if any provision of this Release and Covenant Not
to
Xxx is found, held or deemed by a court of competent jurisdiction to be void,
unlawful or unenforceable under any applicable statute or controlling law,
the
remainder of this Release and Covenant Not to Xxx shall continue in full
force and effect.
|
12.
|
GOVERNING
LAW/ARBITRATION OF
DISPUTES.
|
This
Release and Covenant Not to Xxx shall be interpreted and enforced according
to
the laws of the Commonwealth of Kentucky, without regard to any conflict of
laws
provisions, except to the extent superseded by applicable federal law. Except
where the Company or any Releasee elects, in its sole discretion, to enforce
any
provision of the Letter Agreement or this Release and Covenant Not to Xxx in
state or federal court, I agree promptly, and in any event within ninety (90)
days, to resolve any dispute arising out of this Release and Covenant Not to
Xxx, through binding confidential arbitration conducted in Louisville, Kentucky,
in accordance with the National Rules for the Resolution of Employment Disputes
of the American Arbitration Association (the “AAA”); provided, one neutral
arbitrator shall be chosen in accordance with AAA rules to arbitrate any such
dispute. I irrevocably consent to such jurisdiction for purposes of the
arbitration, and judgment may be entered thereon in any state or federal court
in the same manner as if I were a resident of the state or federal district
in
which said judgment is sought to be entered. Each party shall be responsible
for
its own legal fees, costs and expenses.
|
13.
|
ACKNOWLEDGEMENT
OF UNDERSTANDING.
|
I
further
acknowledge and agree that I have carefully read and fully understand all of
the
provisions of this Release and Covenant Not to Xxx, that I voluntarily enter
into this Release and Covenant Not to Xxx by signing below, and that if I choose
to do so in less than twenty-one (21) days, I do so of my own free will and
without duress or coercion by the Company.
|
Xxxxx
X. Xxxx
|
|
|
(Date)
|
Please
return to:
Xxxx
Xxxxxxxx
Chief
People Officer
YUM!
Brands, Inc.
0000
Xxxxxxxx Xxxx
Xxxxxxxxxx,
XX 00000
