Contract
EXHIBIT
10.37
August
30, 2006
Xx.
Xxxxxx Xxxxx
000
Xxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
Dear
Xxxxxx:
It is
with great pleasure that we hereby confirm your employment as Chief Marketing
Officer of Arby’s Restaurant Group, Inc. (Arby’s) on the terms and conditions
set forth in this letter agreement and in the attached term sheet (the “Term Sheet”), which
Term Sheet is hereby incorporated herein by reference. You further
agree to accept election and to serve as a director, officer, manager or
representative of any subsidiary of Arby’s without any compensation therefor,
other than as provided in this letter agreement. You will report to
the Chief Executive Officer of Arby’s and your duties will be performed
primarily at the corporate headquarters of Arby’s in Atlanta,
Georgia.
1. Term. The
term of your employment hereunder shall be effective as of September 10, 2006
(herein after referred to as the “Effective Date”)and shall continue through the
third anniversary of the Effective Date (the “Initial Term”); provided, however, that the
term of your employment hereunder may be extended for additional one year
periods beyond the expiration of the Initial Term (the Initial Term together
with any extension shall be referred to hereinafter as the “Employment Term”) if
(a) you provide written notice to Arby’s (a “Renewal Notice”) of
your desire to so extend your employment by no later than (i) in the case of the
first one year extension beyond the Initial Term, the second anniversary of the
Effective Date and (ii) in the case of any subsequent one year extension, the
date that is one year prior to the expiration of the Employment Term, and (b)
Arby’s delivers to you, within 35 days following such anniversary or date, as
applicable, a notice of acceptance (an “Acceptance Notice”)
of such extension. In the event that either you do not deliver a
timely Renewal Notice to Arby’s or Arby’s does not deliver an Acceptance Notice
to you (either because Arby’s delivered a notice to you rejecting your request
to extend the Employment Term or because Arby’s failed to deliver any notice in
a timely manner), then your employment hereunder shall terminate as of the
earlier of (a) the expiration of the Employment Term or (b) upon a termination
of your employment (i) by the Company “without cause” (ii) for “cause” or (iii)
by you due to a “Triggering Event” (each term as hereinafter
defined).
2. Termination Without Cause or
due to a Triggering Event.
(a) In the
event your employment is terminated by Arby’s “without cause” (as hereinafter
defined) or by you due to a “Triggering Event” (as hereinafter
defined):
(i) Arby’s
shall, commencing on the date of such termination of employment, pay to you an
amount (the “First
Year Payment”) equal to your annual base rate of salary in effect as of
the effective date of such termination, payable in semi-monthly installments for
a period of twelve (12) months; provided, that, if the date of your termination
is after an initial public offering of Arby’s Capital Stock on a nationally
recognized stock exchange and if required to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”) and any
Treasury regulations or other guidance promulgated thereunder, you will receive
one half (1/2) of the First Year Payment on the six-month anniversary of the
date of your termination in a lump sum payment, and the remaining half of the
First Year Payment shall thereafter be paid in semi-monthly installments for the
remainder of such twelve-month period;
(ii) Arby’s
shall, commencing twelve (12) months after the effective date of such
termination of your employment, pay to you an amount equal your annual base rate
of salary in effect as of the effective date of such termination for an
additional period of twelve (12) months (the “Second Year Payment Period”);
provided, however, that if you
have secured employment or are providing consulting services prior to or during
the Second Year Payment Period, such semi-monthly payments required to be made
to you by Arby’s during the Second Year Payment Period will be offset by
compensation you earn from any such employment or services during the Second
Year Payment Period;
(iii) If your
termination occurs after your first year of employment, Arby’s shall, within
thirty (30) days after the effective date of such termination pay to you a lump
sum amount equal to the product of your annual target incentive for the year in
which your employment terminates multiplied by a fraction, the numerator of
which is the number of days from January 1st of the year in which your
employment terminated through the date of such termination and the denominator
of which is 365.
(iv) at your
election you will be entitled to continue your coverage under all health and
medical insurance policies maintained by Arby's for the greater of (I) the time
period commencing immediately following your termination of your employment and
ending when you cease receiving payments pursuant to clause (a)(ii) above and
(II) eighteen (18) months following the termination of your employment, in each
case in fulfillment of Arby’s obligations to you under Section 4980B of the Code
or under Part 6 of Title I of the Employee Retirement Income Security Act of
1974, as amended, the cost of such coverage to be allocated between you and
Arby’s in a manner consistent with the percentage allocation of the costs
thereof applicable immediately prior to the termination of your employment;
and
(v) you will
automatically become vested in that number of outstanding unvested stock options
granted to you by Triarc, if any, in which you would have been vested if you had
remained employed by Arby’s through the date which is the earlier of (x) the
third anniversary of the Effective Date or (y) the last day of the Second Year
Payment Period and any stock options that would have remained unvested as
of such date shall be automatically forfeited as of the date of your
termination, and each vested stock option must be exercised within the earlier
of (I) one (1) year following your termination or (II) the date on which such
stock option expires, or be forfeited. This treatment of stock options is
subject to the approval of Triarc’s Compensation / Performance Compensation
Subcommittee.
(b) A
termination by Arby’s “without cause” shall
mean the termination of your employment by Arby’s for any reason other than
those reasons set forth in clauses (i)-(ix) of paragraph 4 of this letter
agreement; it being understood that a termination of your employment hereunder
upon the expiration of the Employment Term shall not be deemed to be a
termination by Arby’s without cause.
(c) The
payment of any monies and provision of any benefits to you pursuant to this
paragraph 2 shall be subject to your prior execution and delivery to Arby’s of a
release substantially in the form set forth in Exhibit 1 and, if applicable,
your not having revoked such release during the seven-day revocation period
described therein, failing which, except to the extent required by law, Arby’s
shall be relieved of all of its obligations hereunder.
(d) For
purposes of this letter agreement, “Triggering Event”
shall mean: (i) a material reduction in your responsibilities as Chief
Marketing Officer of Arby’s; (ii) a requirement that you report to any person
other than the Chief Executive Officer of Arby’s or the Board; (iii) a reduction
in your then current base salary (as described in the Term Sheet), or target
bonus percentage (as described in the Term Sheet); or (iv) without your consent,
relocation to a work situs not in the Atlanta, Georgia greater metropolitan
area; provided
that a Triggering Event shall only be deemed to have occurred if, no later than
thirty (30) days following the time you learn of the circumstances constituting
a Triggering Event, you provide a written notice to Arby’s containing reasonable
details of such circumstances and within thirty (30) days following the delivery
of such notice to Arby’s, Arby’s has failed to cure such
circumstances.
3. Treatment of Stock Options
on Termination due to Disability. In the event your employment
is terminated by Arby’s due to “Disability” (as hereinafter defined), you will
automatically become vested in that number of outstanding
unvested stock options granted to you by Triarc, if any, in which you
would have been vested if you had remained employed by Arby’s through the date
which is the earlier of (x) the third anniversary of the Effective Date or (y)
the last day of the Second Year Payment Period and any stock options that
would have remained unvested as of such date shall be automatically forfeited as
of the date of your termination, and each vested stock option must be exercised
within the earlier of (I) one (1) year following your termination or (II) the
date on which such stock option expires, or be forfeited. This treatment of
stock options is subject to the approval of Triarc’s Compensation / Performance
Compensation Subcommittee.
4. Cause. For
purposes of this agreement, “cause” means: (i)
commission of any act of fraud or gross negligence by you in the course of your
employment hereunder that, in the case of gross negligence, has a material
adverse effect on the business or financial condition of Arby’s or any of its
affiliates; (ii) willful material misrepresentation at any time by you to the
Chief Executive Officer or the Board; (iii) voluntary termination by you of your
employment (other than on account of a Triggering Event) or the willful failure
or refusal to comply with any of your material obligations hereunder or to
comply with a reasonable and lawful instruction of the Chief Executive Officer
or the Board; (iv) engagement by you in any conduct or the commission by you of
any act that is, in the reasonable opinion of the Board, materially injurious or
detrimental to the substantial interest of Arby’s or any of its affiliates; (v)
your indictment for any felony, whether of the United States or any state
thereof or any similar foreign law to which you may be subject; (vi) any failure
substantially to comply with any written rules, regulations, policies or
procedures of Arby’s furnished to you that, if not complied with, could
reasonably be expected to have a material adverse effect on the business of
Arby’s or any of its affiliates; (vii) any willful failure to comply with Arby’s
policies regarding xxxxxxx xxxxxxx; (viii) your death; or (ix) your inability to
perform all or a substantial part of your duties or responsibilities on account
of your illness (either physical or mental) for more than 90 consecutive
calendar days or for an aggregate of 150 calendar days during any consecutive
nine month period (“Disability”).
5. Return of
Property. Upon any termination of your employment with Arby’s,
you will promptly return to Arby’s all property provided to you and owned by
Arby’s or any of its affiliates, including, but not limited to, credit cards,
computers, personal data assistants, automobiles, cell phones and
files.
6. Noncompete/Nonsolicitation/Employee
No-Hire.
(a) You
acknowledge that as Arby’s Chief Marketing Officer you will be involved, at the
highest level, in the development, implementation, and management of Arby’s
business strategies and plans, including those which involve Arby’s finances,
marketing and other operations, and acquisitions and, as a result, you will have
access to Arby’s most valuable trade secrets and proprietary information. By
virtue of your unique and sensitive position, your employment by a competitor of
Arby’s represents a material unfair competitive danger to Arby’s and the use of
your knowledge and information about Arby’s business, strategies and plans can
and would constitute a competitive advantage over Arby’s. You further
acknowledge that the provisions of this paragraph 6 are reasonable and necessary
to protect Arby’s legitimate business interests.
(b) In view
of clause (a) above, you hereby covenant and agree that during your employment
with Arby’s (except in the proper discharge of your duties hereunder) and for a
period of twenty-four (24) months following the termination of your employment
with Arby’s:
(i) in any
state or territory of the United States (and the District of Columbia) where
Arby’s maintains restaurants, you will not engage or be engaged in any capacity,
“directly or indirectly” (as defined below), except as a passive investor owning
less than a two percent (2%) interest in a publicly held company, in any
business or entity that owns and/or franchises more than 3,000 restaurant units
in the United States in which 50% or more of the revenues of such business or
entity (including, without limitation, royalties earned as a franchisor) is
derived from the sale of sandwiches;
(ii) you will
not, directly or indirectly, without Arby’s prior written consent, hire or cause
to be hired, solicit or encourage to cease to work with Arby’s or any of its
subsidiaries or affiliates, any person who is at the time of such activity, or
who was within the six (6) month period preceding such activity, an employee of
Arby’s or any of its subsidiaries or affiliates at the level of director or any
more senior level or a consultant under contract with Arby’s or any of its
subsidiaries or affiliates and whose primary client is such entity or entities;
and
(iii) you will
not, directly or indirectly, solicit, encourage or cause any franchisee or
supplier of Arby’s or any of its subsidiaries or affiliates to cease doing
business with Arby’s or subsidiary or affiliate, or to reduce the amount of
business such franchisee or supplier does with Arby’s or such subsidiary or
affiliate.
(c) For
purposes of this paragraph 6, “directly or
indirectly” means in your individual capacity for your own benefit or as
a shareholder, lender, partner, member or other principal, officer, director,
employee, agent or consultant of or to any individual, corporation, partnership,
limited liability company, trust, association or any other entity whatsoever;
provided, however, that you may
own stock in Arby’s and may operate, directly or indirectly, Arby’s restaurants
as a franchisee without violating paragraphs 6(b)(i) or 6(b)(iii).
(d) If any
competent authority having jurisdiction over this paragraph 6 determines that
any of the provisions of this paragraph 6 is unenforceable because of the
duration or geographical scope of such provision, such competent authority shall
have the power to reduce the duration or scope, as the case may be, of such
provision and, in its reduced form, such provision shall then be
enforceable.
7. Confidential
Information. You agree to treat as confidential and not to
disclose to anyone other than Arby’s and its subsidiaries and affiliates, and
their respective officers, directors, employees and agents, and you agree that
you will not at any time during your employment and for a period of four years
thereafter, without the prior written consent of Arby’s, divulge, furnish, or
make known or accessible to, or use for the benefit of anyone other than Arby’s,
its subsidiaries, and affiliates, any information of a confidential nature
relating in any way to the business of Arby’s or its subsidiaries or affiliates,
or any of their respective franchisees, suppliers or distributors, unless (i)
you are required to disclose such information by requirements of law, (ii) such
information is in the public domain through no fault of yours, or (iii) such
information has been lawfully acquired by you from other sources unless you know
that such information was obtained in violation of an agreement of
confidentiality. You further agree that during the period referred to in the
immediately preceding sentence you will refrain from engaging in any conduct or
making any statement, written or oral that is disparaging of Arby’s, any of its
subsidiaries or affiliates or any of their respective directors or officers.
Arby’s agrees during the period referred to in the first sentence of this
paragraph 7 that each then current member of the Board and each of Arby’s then
current executive officers shall refrain from making any statement, written or
oral, that is disparaging of you, your personal reputation or professional
competency.
8. Enforcement. You
agree that, in addition to any other remedy provided at law or in equity, (a)
Arby’s shall be entitled to a temporary restraining order, and both preliminary
and permanent injunctive relief restraining you from violating any of the
provisions of paragraphs 6 or 7 of this letter agreement (in recognition of the
fact that damages in the event of a breach by you of paragraphs 6 or 7 of this
letter agreement would be difficult if not impossible to ascertain and
inadequate to remedy), (b) you will indemnify and hold Arby’s and its affiliates
harmless from and against any and all damages or losses incurred by Arby’s or
any of its affiliates (including reasonable attorneys’ fees and expenses) as a
result of any willful or reckless violation by you of any such provisions and
(c) upon any such willful or reckless violation by you, Arby’s’ remaining
obligations under this letter agreement, if any, shall cease (other than payment
of your base salary through the date of termination of your employment and any
earned but unpaid vacation, and other than as may otherwise be required by
law).
9. Governing Law; Jurisdiction
and Venue; Entire Agreement; Jury Trial Waiver.
(a) It is the
intent of the parties hereto that all questions with respect to the construction
of this letter agreement and the rights and liabilities of the parties hereunder
shall be determined in accordance with the laws of the State of Delaware,
without regard to principles of conflicts of laws thereof that would call for
the application of the substantive law of any jurisdiction other than the State
of Delaware.
(b) Each
party irrevocably agrees for the exclusive benefit of the other that any and all
suits, actions or proceedings relating to paragraphs 6, 7, and, as it relates to
paragraphs 6 and 7, paragraphs 8 and 9 of this letter agreement (collectively,
“Proceedings”
and, individually, a “Proceeding”) shall
be maintained in either the courts of the State of Delaware or the federal
District Courts sitting in Wilmington, Delaware (collectively, the “Chosen Courts”) and
that the Chosen Courts shall have exclusive jurisdiction to hear and determine
or settle any such Proceeding and that any such Proceedings shall only be
brought in the Chosen Courts. Each party irrevocably waives any
objection that it may have now or hereafter to the laying of the venue of any
Proceedings in the Chosen Courts and any claim that any Proceedings have been
brought in an inconvenient forum and further irrevocably agrees that a judgment
in any Proceeding brought in the Chosen Courts shall be conclusive and binding
upon it and may be enforced in the courts of any other
jurisdiction.
(c) Each of
the parties hereto agrees that this letter agreement involves at least $100,000
and that this letter agreement has been entered into in express reliance on
Section 2708 of Title 6 of the Delaware Code. Each of the parties
hereto irrevocably and unconditionally agrees that, to the extent such party is
not otherwise subject to service of process in the State of Delaware, service of
process may be made on such party by pre-paid certified mail with a validated
proof of mailing receipt constituting evidence of valid service sent to such
party at the address set forth in this letter agreement, as such address may be
changed from time to time pursuant hereto, and that service made pursuant to
this paragraph 9(c) shall, to the fullest extent permitted by applicable law,
have the same legal force and effect as if served upon such party personally
within the State of Delaware.
(d) This
letter agreement contains the entire agreement among the parties with respect to
the matters covered herein and supersedes all prior agreements, written or oral,
with respect thereto. This letter agreement may only be amended, superseded,
cancelled, extended or renewed and the terms hereof waived, by a written
instrument signed by the parties hereto, or in the case of a waiver, by the
party waiving compliance.
(e) EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY
IN ANY PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG THE
PARTIES HERETO ARISING OUT OF OR RELATED TO THIS LETTER AGREEMENT OR ANY OTHER
AGREEMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR
FOR ANY COUNTERCLAIM THEREIN. THE PARTIES HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
[remainder
of page intentionally left blank]
10. Arbitration. Except
to the extent specifically contemplated by paragraph 9(b) of this letter
agreement, all disputes arising in connection with your employment with Arby’s
(whether based on contract or tort or upon any federal, state or local statute,
including but not limited to claims asserted under the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, as amended, any state
Fair Employment Practices Act and/or the Americans with Disability Act) or any
rights arising pursuant to this letter agreement shall, at the election of
either you or Arby’s, be submitted to JAMS/ENDISPUTE for resolution in
arbitration in accordance with the rules and procedures of JAMS/ENDISPUTE.
Either party shall make such election by delivering written notice thereof to
the other party at any time (but not later than 45 days after such party
receives notice of the commencement of any administrative or regulatory
proceeding or the filing of any lawsuit relating to any such dispute or
controversy) and thereupon any such dispute or controversy shall be resolved
only in accordance with the provisions of this paragraph 10. Any such
proceedings shall take place in Atlanta, Georgia before a single arbitrator who
shall have the right to award to any party to such proceedings any right or
remedy that is available under applicable law (including, without limitation,
ordering the losing party to reimburse the reasonable legal fees and expenses
incurred by the winning party with respect to such proceedings). The
resolution of any such dispute or controversy by the arbitrator appointed in
accordance with the procedures of JAMS/ENDISPUTE shall be final and binding.
Judgment upon the award rendered by such arbitrator may be entered in any court
having jurisdiction thereof.
THIS
PARAGRAPH 10 IS SPECIFICALLY ACKNOWLEDGED AND AGREED BY:
| ARBY'S RESTAURANT GROUP, INC. | |
|
/s/ Xxxxxx Xxxxx
|
/s/ Xxxxxx Xxxxx
|
| Name: Xxxxxx Xxxxx | Xxxxxx Xxxxx |
| Title: Chief Executive Officer |
11. Legal
Fees. Subject to paragraph 10 above, each party shall pay his
or its own costs for any arbitration or litigation, as applicable, initiated in
connection with any disputes arising in connection with your employment with
Arby’s, with the cost of the arbitrator, if applicable, to be equally divided
between the parties.
12. Survivability. The
provisions of paragraphs 6, 7, 8, 9, 10, 11 and 13 shall specifically survive
any termination of this letter agreement.
13. Notices. Any
notice given pursuant to this letter agreement to any party hereto shall be
deemed to have been duly given when mailed by registered or certified mail,
return receipt requested, or by overnight courier, or when hand delivered as
follows:
|
|
If
to Arby’s on or after the Effective
Date:
|
|
|
Arby’s
Restaurant Group, Inc.
|
|
|
0000
Xxxxxxxxx Xxxxxx Xxxx
|
|
|
Xxxxxxx,
Xxxxxxx 00000
|
|
|
Attn:
CEO
|
If to
you, at the address set forth on the first page of this letter
agreement
or at
such other address as either party shall from time to time designate by written
notice, in the manner provided herein, to the other party hereto.
14. Tax
Withholding. You agree that Arby’s may withhold from any
amounts payable to you hereunder all federal, state, local or other taxes that
Arby’s determines are required to be withheld pursuant to any applicable law or
regulation. You further agree that if the Internal Revenue Service or other
taxing authority (each, a “Taxing Authority”)
asserts a liability against Arby’s for failure to withhold taxes on any payment
hereunder, you will pay to Arby’s the amount determined by such Taxing Authority
(other than penalty or interest amounts unless such payment is made after 30
days of the delivery of such notice to you, in which case you shall be
responsible for such penalties and interest) that had not been withheld within
thirty (30) days of notice to you of such determination. Such notice shall
include a copy of any correspondence received from a Taxing Authority with
respect to such withholding.
15. Expense
Reimbursement. You will be entitled to reimbursement for all
of your reasonable and necessary business expenses, including reasonable cell
phone, travel, lodging and entertainment expenses, in accordance with Arby’s
business expense reimbursement policy as in effect from time to time and upon
submission of appropriate documentation and receipts.
If you
agree with the terms outlined above and in the Term Sheet, please date and sign
the copy of this letter agreement enclosed for that purpose and return it to me.
|
|
Sincerely, |
|
ARBY'S RESTAURANT GROUP, INC.
|
|
|
/s/ Xxxxxx Xxxxx
|
|
| Name: Xxxxxx Xxxxx | |
| Title: Chief Executive Officer | |
|
Agreed and
Accepted
|
|
|
/s/ Xxxxxx Xxxxx
|
|
| Xxxxxx Xxxxx |
Xxxxxx
Xxxxx
Chief
Marketing Officer
Arby’s
Restaurant Group, Inc.
Employment Term
Sheet
|
PROVISION
|
TERM
|
COMMENTS
|
|
Base
Salary
|
325,000 /
year
|
|
|
Annual
Incentive
|
Target
annual bonus
Percentage
equal to
75%
of base salary
|
Company
and individual performance assessed for each fiscal year relative to
objectives agreed to in advance between the company and the Board’s
compensation committee. 2006 bonus will be a prorated payment based on
performance targets set per the Operating Plan reforecast for Quarters 2 –
4, 2006. The 2006 Bonus will be guaranteed at
140,250.
|
|
Benefits
|
Benefits
as are generally made available to other senior executives of Arby’s,
including participation in health/medical and insurance programs and in
car allowance programs of $1,400 / month. ARG will reimburse
COBRA continuation premiums until ARG insurance is
effective.
|
|
|
Vacation
|
(4)
Four weeks per year
|
|
|
Stock
Options
|
50,000
Option Grant
(#
of Options)
|
Stock
options to be recommended for approval by the Compensation Committee as
soon as practicable. Per the Non-Incentive Stock Option Agreement stock
options vest over a 3 year period at 1/3 each year.
|
|
Relocation
Policy
|
ARG
Relocation Policy
(See
attachment)
Note:
Not applicable
|
Comprehensive
relocation program provided through Cartus (formerly
Cendant).
Contact
Information:
Xxxx
Xxxxxxxxx or
Xxxx
Clanslone
(000)
000-0000
|
|
Employment
Contract
|
3
Years
|
Terms
as are generally made available to other senior executives of Arby’s
including change of control protection and involuntary separation salary
continuance for 24 months.
|
EXHIBIT
1
GENERAL
RELEASE
AND
COVENANT NOT TO XXX
TO ALL
WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW that:
Xxxxxx
Xxxxx (the “Executive”), on her
own behalf and on behalf of her descendants, dependents, heirs, executors and
administrators and permitted assigns, past and present, in consideration for the
amounts payable and benefits to be provided to the undersigned under that Letter
Agreement dated as of August 30, 2006 (the “Employment
Agreement”) between the Executive and Arby’s Restaurant Group, Inc., a
Delaware corporation (the “Company”), does
hereby covenant not to xxx or pursue any litigation (or file any charge or
otherwise correspond with any Federal, state or local administrative agency),
arbitration or other proceeding against, and waives, releases and discharges the
Company, Triarc Companies, Inc. and their respective assigns, affiliates,
subsidiaries, parents, predecessors and successors, and the past and present
shareholders, employees, officers, directors, representatives and agents or any
of them (collectively, the “Company Group”), from
any and all claims, demands, rights, judgments, defenses, actions, charges or
causes of action whatsoever, of any and every kind and description, whether
known or unknown, accrued or not accrued, that the Executive ever had, now has
or shall or may have or assert as of the date of this General Release and
Covenant Not to Xxx against any member of the Company Group, including, without
limiting the generality of the foregoing, any claims, demands, rights,
judgments, defenses, actions, charges or causes of action related to employment
or termination of employment or that arise out of or relate in any way to the
Age Discrimination in Employment Act of 1967 (“ADEA,” a law that
prohibits discrimination on the basis of age), the National Labor Relations Act,
the Civil Rights Act of 1991, the Americans With Disabilities Act of 1990, Title
VII of the Civil Rights Act of 1964, the Employee Retirement Income Security Act
of 1974, the Family and Medical Leave Act, the Xxxxxxxx-Xxxxx Act of 2002, all
as amended, and other Federal, state and local laws relating to discrimination
on the basis of age, sex or other protected class, all claims under Federal,
state or local laws for express or implied breach of contract, wrongful
discharge, defamation, intentional infliction of emotional distress, and any
related claims for attorneys’ fees and costs; provided, however, that nothing
herein shall release any member of the Company Group from any of its obligations
to the Executive under the Employment Agreement or any rights the Executive may
have to indemnification under any charter or by-laws (or similar documents) of
any member of the Company Group. The Executive further agrees that this General
Release and Covenant Not to Xxx xxx be pleaded as a full defense to any action,
suit, arbitration or other proceeding covered by the terms hereof which is or
may be initiated, prosecuted or maintained by the Executive, his heirs or
assigns. Notwithstanding the foregoing, the Executive understands and confirms
that he is executing this General Release and Covenant Not to Xxx voluntarily
and knowingly, and this General Release and Covenant Not to Xxx shall not affect
the Executive’s right to claim otherwise under ADEA. In addition, the Executive
shall not be precluded by this General Release and Covenant Not to Xxx from
filing a charge with any relevant Federal, State or local administrative agency,
but the Executive agrees not to participate in any such administrative
proceeding (other than any proceeding brought by the Equal Employment
Opportunity Commission), and agrees to waive the Executive’s rights with respect
to any monetary or other financial relief arising from any such administrative
proceeding.
In
consideration for the amounts payable and benefits to be provided to the
Executive under the Employment Agreement, the Executive agrees to cooperate, at
the expense of the Company Group, with the members of the Company Group in
addition with all litigation relating to the activities of the Company and its
affiliates during the period of the Executive’s employment with the Company
including, without limitation, being available to take depositions and to be a
witness at trial, help in preparation of any legal documentation and providing
affidavits and any advice or support that the Company or any affiliate thereof
may request of the Executive in connection with such claims.
In
furtherance of the agreements set forth above, the Executive hereby expressly
waives and relinquishes any and all rights under any applicable statute,
doctrine or principle of law restricting the right to release claims which the
Executive does not know or suspect to exist at the time of executing a release,
which claims, if known, may have materially affected the Executive’s decision to
give such a release. In connection with such waiver and relinquishment, the
Executive acknowledges that he is aware that he may hereafter discover claims
presently unknown or unsuspected, or facts in addition to or different from
those which he now knows or believes to be true, with respect to the matters
released herein. Nevertheless, it is the intention of the Executive to fully,
finally and forever release all such matters, and all claims relating thereto
which now exist, may exist or theretofore have existed, as specifically provided
herein. The Executive acknowledges and agrees that this waiver shall be an
essential and material term of the release contained above. Nothing in this
paragraph is intended to expand the scope of the release as specified
herein.
This
General Release and Covenant Not to Xxx shall be governed by and construed in
accordance with the laws of the State of Georgia, applicable to agreements made
and to be performed entirely within such State.
To the
extent that the Executive is forty (40) years of age or older, this paragraph
shall apply. The Executive acknowledges that he has been offered a period of
time of at least twenty-one (21) days to consider whether to sign this General
Release and Covenant Not to Xxx, which he has waived, and the Company agrees
that the Executive may cancel this General Release and Covenant Not to Xxx at
any time during the seven (7) days following the date on which this General
Release and Covenant Not to Xxx has been signed by all parties to this General
Release and Covenant Not to Xxx. In order to cancel or revoke this General
Release and Covenant Not to Xxx, the Executive must deliver to the General
Counsel of the Company written notice stating that the Executive is canceling or
revoking this General Release and Covenant Not to Xxx. If this General Release
and Covenant Not to Xxx is timely cancelled or revoked, none of the provisions
of this General Release and Covenant Not to Xxx shall be effective or
enforceable and the Company shall not be obligated to make the payments to the
Executive or to provide the Executive with the other benefits described in the
Employment Agreement and all contracts and provisions modified, relinquished or
rescinded hereunder shall be reinstated to the extent in effect immediately
prior hereto.
The
Executive agrees that as part of the consideration for this General Release and
Covenant Not to Xxx, he will not make disparaging or derogatory remarks, whether
oral or written, about the Company Group.
Each of
the Executive and the Company acknowledges and agrees that it has entered into
this General Release and Covenant Not to Xxx knowingly and willingly and has had
ample opportunity to consider the terms and provisions of this General Release
and Covenant Not to Xxx.
IN
WITNESS WHEREOF, the parties hereto have caused this General Release and
Covenant Not to Xxx to be executed on this _______________ day of
_______________, __.
Xxxxxx Xxxxx
ARBY’S
RESTAURANT GROUP, INC.
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Name:
___________________________
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Title:
____________________________
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