Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 15th day of December, 2003,
by and between RARE HOSPITALITY MANAGEMENT, INC., a Delaware corporation
(hereinafter referred to as the "Company"), and XXXXXXXX XXXXXX, a resident of
the State of Georgia (hereinafter referred to as the "Executive");
WITNESSETH:
The Company, its parent and subsidiaries (collectively, "RARE" and
individually, a "RARE Entity") are engaged in the business of owning, operating
and franchising the operation of restaurants under the names LongHorn
Steakhouse(R), The Capital Grille(R), Bugaboo Creek Steak House(R) and others.
Executive currently serves in the position of Vice President of Finance for the
Company, and the Executive desires to be assured of this position on the terms
and conditions set forth in this Agreement. The Company desires to continue to
employ the Executive on such terms and conditions.
In the course of Executive's employment, Executive has gained and will gain
knowledge of the business, affairs, customers, franchisees, plans and methods of
RARE, has been and will be trained at the expense of RARE in the development,
opening, operation and management of RARE's restaurants through the use of
techniques, systems, practices and methods used and devised by RARE, has had and
will have access to information relating to RARE's customers and their
preferences and dining habits and has and will become personally known to and
acquainted with RARE's suppliers and managers in the Restricted Area (as defined
in this Agreement) thereby establishing a personal relationship with such
suppliers and managers for the benefit of RARE.
The Company would suffer irreparable harm if Executive were to use such
knowledge, information and personal relationships related to RARE and its
business that are obtained and developed in the course of Executive's employment
with the Company, other than in the proper performance of his duties for the
Company.
In consideration of the sum of $1.00 in hand paid by the Company to
Executive, the receipt and sufficiency of which are hereby acknowledged, and the
mutual covenants and obligations contained herein, the Company and Executive
hereby agree as follows:
1. Employment. The Company hereby agrees to continue to employ Executive,
and Executive hereby accepts such continued employment and agrees to perform his
duties and responsibilities hereunder, in accordance with the terms and
conditions hereinafter set forth.
1.1. Employment Term. The employment term of this Agreement shall commence
on the date hereof (the "Commencement Date") and shall continue as employment at
will until terminated by the Company or Executive for any reason. The period
from the Commencement Date until the employment term is terminated by the
Company or Executive is hereinafter referred to as the "Employment Term."
1.2 Duties of Executive. Executive agrees that during the Employment Term,
he will devote his full professional and business-related time, skills and best
efforts to the business of RARE, initially in the capacity of Vice President of
Finance for the Company, and subsequently in such capacity or capacities as
shall be determined by the Company. In addition, Executive shall devote his full
time and his best efforts to the performance of any other reasonable duties as
may be assigned to him from time to time by the Company, and he shall abide by
the employment and other corporate policies of the Company established from time
to time. Executive shall devote all of his full professional and
business-related skills solely to the affairs of RARE, and shall not, during his
employment, unless otherwise agreed to in advance in writing by the Company,
seek or accept other employment, become self-employed in any other capacity
during the term of his employment, or engage in any activities which are
detrimental to the business of RARE. Notwithstanding the foregoing, Executive
may engage in personal investment activities provided such activities do not
interfere with Executive's performance of his full-time employment duties under
this Agreement. Executive shall perform his duties, primarily, in the Atlanta,
Georgia metropolitan area.
2. Compensation and Benefits.
2.1 Base Compensation. For all the services rendered by Executive
hereunder, the Company shall pay Executive an annual salary at the rate of One
Hundred Forty-Seven Thousand Dollars ($147,000) for each full year of the
Employment Term, plus such additional amounts, if any, as may be approved by the
Company ("Base Compensation"), payable in installments at such times as the
Company customarily pays its other executives generally (but in any event no
less often than monthly). The Company agrees that the Executive's salary will be
reviewed at least annually to determine if an increase is appropriate, which
increase shall be in the sole discretion of the Company. Executive's salary
shall be prorated for any partial calendar year during which this Agreement
remains in effect.
2.2 Bonus Awards. In addition to the Base Compensation, during the
Employment Term Executive shall be eligible for a bonus determined and paid in
accordance with the bonus program for employees of the Company, as approved by
the Company from time to time. Unless otherwise set forth in this Agreement,
Executive must be employed by the Company on the date the bonus is paid to
executive employees generally in order to be entitled to a bonus for that year.
2.3 Other Benefits. In addition to all other compensation paid or payable
from the Company to Executive hereunder, during the Employment Term Executive
shall be entitled to participate in any supplemental life insurance plan
maintained for Vice President level executives and participate in any and all
other employee benefit programs maintained by the Company for the benefit of its
executive employees generally, in accordance with and subject to the terms and
conditions of such programs.
2.4 Expenses. In addition to the compensation described in this Agreement,
the Company shall promptly reimburse Executive for all reasonable expenses
incurred by him in the performance of his duties under this Agreement and
vouched to the reasonable satisfaction of appropriate officers of the Company,
pursuant to established procedures.
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3. Payment upon Termination.
(a) Upon termination of the Employment Term for Cause (as defined in
Exhibit A attached hereto and incorporated herein by reference), Executive shall
be entitled to receive the compensation owed to Executive but unpaid for
performance rendered under this Agreement as of the date of termination and any
additional compensation he may be entitled to receive under the terms of any
employee benefit plan offered by the Company.
(b) Upon termination of the Employment Term by the death of Executive,
Executive's estate shall be entitled to receive the compensation under Section
2.1 owed to Executive but unpaid for performance rendered under this Agreement
as of the date of death, and any additional compensation Executive's estate may
be entitled to receive under the terms of any employee benefit plan offered by
the Company. Executive's estate shall also be entitled to receive Executive's
pro rata share (based on days worked before death) of the bonus to which he
would have been entitled if he had (i) been an employee on the date bonuses for
the then-current fiscal year were distributed and (ii) achieved his individual
bonus plan goals, if any. The bonus payment shall be made as and when bonus
payments, if any, would otherwise be payable under Section 2 of this Agreement.
(c) In the event that during the Employment Term Executive becomes Disabled
and the Company thereafter terminates Executive's employment during the
continuation of such Disability, Executive shall be entitled to receive the
compensation under Section 2.1 owed to Executive but unpaid for performance
rendered under this Agreement as of the date of termination, and any additional
compensation Executive may be entitled to receive under the terms of any
employee benefit plan offered by the Company. Executive shall be also entitled
to receive his pro rata share (based on days worked before the commencement of
the ninety-day period required for a Disability) of the bonus to which he would
have been entitled if he had (i) been an employee on the date bonuses for the
then-current fiscal year were distributed and (ii) achieved his individual bonus
plan goals, if any. The bonus payments shall be made as and when salary and
bonus payments, if any, would otherwise be payable under Section 2 of this
Agreement.
(d) In the event that the Company terminates Executive's employment for any
reason other than those set forth in subsections (a), (b) or (c) above, unless
the provisions of Section 3(e) apply, Executive shall be entitled to receive the
compensation under Section 2.1 owed to Executive but unpaid for performance
rendered under this Agreement as of the date of termination and the Company will
be obligated to pay Executive his Base Compensation as of the date of
termination of such employment from the date of such termination for six (6)
months. Such payment shall be made over a six-month period as and when salary
would otherwise be payable under Section 2 of this Agreement.
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(e) In the event that (i) during the Employment Term a Change in Control
(as defined in Exhibit A attached hereto) shall occur and (ii) within twelve
(12) months following the occurrence of the Change in Control, the Company
demotes Executive other than for Cause, effects an involuntary transfer of
Executive to a location more than fifty (50) miles from Executive's place of
residence or terminates Executive's employment other than for Cause then, in
lieu of the amounts payable pursuant to Section 3(d) Executive shall be entitled
to receive the compensation under Section 2.1 as owed to Executive but unpaid
for performance rendered under this Agreement as of the date of termination of
such employment, and the Company will be obligated to pay Executive an
additional amount equal to the sum of (x) his annual Base Compensation as of the
date of termination of such employment plus (y) an amount equal to the bonus
paid to Executive pursuant to Section 2.2 for the calendar year immediately
preceding the calendar year in which the termination of employment occurs. Such
payment shall be made within thirty (30) days following termination of
Executive's employment.
(f) Payments made pursuant to this Section 3 are in lieu of any other
obligations to Executive pursuant to the terms of this Agreement.
4. Noncompetition. Executive covenants and agrees that during the term of
his employment by the Company and for a period of one (1) year immediately
following the termination of Executive's employment by the Company for any
reason whatsoever, Executive will not, within the area described on Exhibit B
hereto (the "Restricted Area"), directly or indirectly compete with RARE in
connection with a business, any significant portion of which involves the
development, opening, operation or franchising of restaurants that derive more
than thirty percent (30%) of their food sales from steak products, if a RARE
Entity is still engaged in such business in such area.
4.1 Definition of "Compete." For the purposes of this Agreement, the term
"compete" shall mean the providing of general management, supervisory or
consulting services for the development, operation or franchising of restaurants
that derive more than thirty percent (30%) of their food sales from steak
products.
4.2 Direct or Indirect Competition. For the purposes of this Agreement, the
words "directly or indirectly" as they modify the word "compete" shall mean (i)
acting as an agent, representative, consultant, officer, director, independent
contractor, or employee engaged in a management capacity with any entity or
enterprise which is carrying on a business any significant portion of which
involves the development, opening, or operation of restaurants offering steak
products as at least thirty percent (30%) of their food sales, (ii)
participating in any such competing entity or enterprise as an owner, partner,
limited partner, joint venturer, creditor or stockholder (except as a
stockholder holding less than one percent (1%) interest in a corporation whose
shares are actively traded on a regional or national securities exchange or in
the over-the-counter market), or (iii) communicating to any such competing
entity or enterprise the names or addresses or any other information concerning
any employee or supplier of a RARE Entity or any successor to the goodwill of a
RARE Entity with respect to the business of a RARE Entity.
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5. Confidentiality. Executive recognizes and acknowledges that by reason of
his employment by and service to the Company, he will have access to all trade
secrets and other confidential information of RARE including, but not limited
to, confidential: pricing information, marketing information, sales techniques
of RARE, confidential records, RARE's expansion plans, restaurant development
and marketing techniques, operating procedures, training programs and materials,
business plans, franchise arrangements, plans and agreements, information
regarding suppliers, product quality and control procedures, financial
statements and projections and other information regarding the operation of
RARE's restaurants (hereinafter referred to as the "Confidential Information").
Executive acknowledges that such Confidential Information is a valuable and
unique asset of RARE and covenants that he will not, either during the term of
his employment by the Company or for a period of two (2) years thereafter,
disclose any such Confidential Information to any person for any reason
whatsoever (except as his duties for the Company may require) without the prior
written authorization of the Company's Chief Executive Officer. Executive agrees
that he will not copy any Confidential Information except as the performance of
his duties for the Company may require and that upon the termination of his
employment by the Company, he shall return all Confidential Information and any
copies thereof in his possession to the Company. Executive hereby acknowledges
and agrees that the prohibitions against disclosure of Confidential Information
recited herein are in addition to, and not in lieu of, any rights or remedies
which the Company may have available pursuant to the laws of any jurisdiction or
at common law to prevent the disclosure of trade secrets or proprietary
information, and the enforcement by the Company of its rights and remedies
pursuant to this Agreement shall not be construed as a waiver of any other
rights or available remedies which it may possess in law or equity absent this
Agreement. Notwithstanding the foregoing, the Company acknowledges and agrees
that nothing contained herein shall restrict or otherwise prohibit or prevent
disclosure of Confidential Information pursuant to legal proceedings, subpoena,
civil investigative demand or other similar process. Executive agrees that if
disclosure of Confidential Information is requested or required pursuant to any
such process, he shall provide the Company with prompt written notice of any
such request or requirement so that RARE may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement. If, in the absence of a protective order or other remedy or the
receipt of a waiver by the Company, Executive is nonetheless, legally compelled
to disclose Confidential Information to any tribunal or other agency, Executive
may, without liability hereunder, disclose to such tribunal or other agency only
that portion of the Confidential Information which Executive is legally required
to disclose, Executive agrees to cooperate with RARE to obtain an appropriate
protective order or other reliable assurance that such tribunal or other agency
will accord the Confidential Information confidential treatment. The Company
also acknowledges and agrees that Confidential Information shall not include any
information (a) known by Executive prior to his employment by the Company and
learned by Executive other than as a result of his employment relationship with
any RARE Entity, (b) independently developed by the Executive outside of the
scope of his employment relationship with any RARE Entity or (c) that is or
becomes publicly available through no breach by the Executive of his obligation
to the Company.
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6. Non-Solicitation of Employees. Executive covenants that during the term
of his employment by the Company, and during the two (2) year period immediately
following the termination of such employment, Executive will neither directly
nor indirectly induce or attempt to induce any employee of a RARE Entity to
terminate his or her employment to go to work for any other employer in a
business competing with that of RARE. For purposes of this Section 6, "neither
directly nor indirectly" means Executive shall neither (i) take the prohibited
action himself, (ii) act as agent, representative, consultant, recruiter or
independent contractor for anyone with regard to taking the prohibited action,
nor (iii) communicate to any such person the names, addresses, telephone numbers
or any other information concerning an employee of any RARE Entity.
7. Hiring of Employees. Executive covenants that during the term of his
employment by the Company, and during the one (1) year period immediately
following the termination of such employment, Executive will neither directly
nor indirectly hire any salaried employee of a RARE Entity. For purposes of this
Section 7, "neither directly nor indirectly" means Executive shall neither (i)
take the prohibited action himself, (ii) act as agent, representative,
consultant, recruiter or independent contractor for anyone with regard to taking
the prohibited action, nor (iii) communicate to any such person the names,
addresses, telephone numbers or any other information concerning an employee of
any RARE Entity.
8. Property of Company. Executive acknowledges that from time to time in
the course of providing services pursuant to this Agreement he shall have the
opportunity to inspect and use certain property, both tangible and intangible,
of RARE Entities, and Executive hereby agrees that said property shall remain
the exclusive property of those RARE Entities and the Executive shall have no
right or proprietary interest in such property, whether tangible or intangible,
including, without limitation, franchise and supplier lists, contract forms,
books of account, training and operating materials and similar property.
9. Developments. All developments, including inventions, whether patentable
or otherwise, trade secrets, discoveries, improvements, ideas and writings which
either directly or indirectly relate to or may be useful in the business of the
Company or any RARE Entity (the "Developments") which Executive, either by
himself or in conjunction with any other person or persons, has conceived, made,
developed, acquired or acquired knowledge of during his employment by the
Company or which Executive, either by himself or in conjunction with any other
person or persons, shall conceive, make, develop, acquire or acquire knowledge
of during the Employment Term, shall become and remain the sole and exclusive
property of the Company. Executive hereby assigns, transfers and conveys, and
agrees to so assign, transfer and convey, all of his right, title and interest
in and to any and all such Developments and to disclose fully as soon as
practicable, in writing, all such Developments to the Chief Executive Officer of
the Company. At any time and from time to time, upon the request and at the
expense of the Company, Executive will execute and deliver any and all
instruments, documents and papers, give evidence and do any and all other acts
which, in the opinion of counsel for the Company, are or may be necessary or
desirable to document such transfer or to enable the Company to file and
prosecute applications for and to acquire, maintain and enforce any and all
patents, trademark registrations or copyrights under United States or foreign
law with respect to any such Developments or to obtain any extension,
validation, reissue, continuance or renewal of any such patent, trademark or
copyright. The Company will be responsible for the preparation of any such
instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse Executive for all reasonable expenses incurred by
him in compliance with the provisions of this Section.
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10. Reasonableness. The restrictions contained in Sections 4, 5, 6 and 7
are considered by the parties hereto to be fair and reasonable and necessary for
the protection of the legitimate business interests of the Company.
11. Equitable Relief. Executive acknowledges that the services to be
rendered by him are of a special, unique, unusual, extraordinary, and
intellectual character, which gives them a peculiar value, and the loss of which
cannot reasonably or adequately be compensated in damages in an action at law;
and that a breach by him of any of the provisions contained in Sections 4, 5, 6
and 7 of this Agreement will cause the Company irreparable injury and damage.
Executive further acknowledges that he possesses unique skills, knowledge and
ability and that any material breach of the provisions of Sections 4, 5, 6 and 7
of this Agreement would be extremely detrimental to the Company. By reason
thereof, Executive agrees that the Company shall be entitled, in addition to any
other remedies it may have under this Agreement or otherwise, to injunctive and
other equitable relief to prevent or curtail any breach of the provisions of
Sections 4, 5, 6 and 7 of this Agreement by him.
12. Survival of Provisions. The provisions of Sections 4 through 14,
inclusive, of this Agreement shall survive the termination of this Agreement to
the extent required to give full effect to the covenants and agreements
contained in those sections. All provisions of this Agreement which contemplate
the making of payments or the provision of consideration or other items of
economic value by the Company to the Executive after the termination of this
Agreement shall likewise survive the termination of this Agreement to the extent
required to give full effect to such undertakings or obligations of the Company
to Executive hereunder.
13. Warranties and Representations. In order to induce the Company to enter
into this Employment Agreement, Executive hereby warrants and represents to the
Company that Executive is not under any obligation, contractual or otherwise, to
any party which would prohibit or be contravened by Executive's continued
employment by the Company and the performance of Executive's duties as Vice
President of Finance for the Company or the performance of Executive's
obligations under this Agreement.
14. Successors Bound; Assignability. This Agreement shall be binding upon
Executive, the Company and their successors in interest, including without
limitation, any corporation into which the Company may be merged or by which it
may be acquired. This Agreement is nonassignable except that the Company's
rights, duties and obligations under this Agreement may be assigned to the
Company's acquiror in the event the Company is merged, acquired or sells
substantially all of its assets.
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15. Severability. In the event that any one or more of the provisions of
this Agreement or any word, phrase, clause, sentence or other portion thereof
shall be deemed to be illegal or unenforceable for any reason, such provision or
portion thereof shall be modified or deleted, to the extent permissible under
applicable law, in such a manner so as to make this Agreement as modified legal
and enforceable to the fullest extent permitted under applicable laws.
16. Withholding. Notwithstanding any of the terms or provisions of this
Agreement, all amounts payable by the Company hereunder shall be subject to
withholding of such sums related to taxes as the Company may reasonably
determine it should withhold pursuant to applicable law or regulation.
17. Headings. The headings and captions used in this Agreement are for
convenience of reference only, and shall in no way define, limit, expand or
otherwise affect the meaning or construction of any provision of this Agreement.
18. Notices. Any notice required or permitted to be given pursuant to this
Agreement shall be deemed sufficiently given when delivered in person or when
deposited in the United States mail, registered or certified mail, postage
prepaid, addressed as follows:
If to the Company, to: RARE Hospitality Management, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
With a copy to: RARE Hospitality International, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
If to Executive, to: Xxxxxxxx Xxxxxx
___________________
___________________
Any party may by written notice change the address to which notices to such
party are to be delivered or mailed.
19. Entire Agreement. This Agreement, together with Exhibit A and Exhibit B
hereto, which are incorporated herein by this reference, constitutes the entire
Agreement between the parties hereto with regard to Executive's employment by
the Company, and there are no agreements, understandings, specific restrictions,
warranties or representations, oral or written, relating to said subject matter
between the parties other than those set forth herein or herein provided for.
This Agreement shall replace and supercede any and all employment agreements,
agreements pertaining to a change of control of the Company or any other RARE
Entity, and other agreements, if any, governing the employment relationship
between the parties.
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20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will take effect as an original and all of which
shall evidence one and the same Agreement.
21. Amendment, Modification and Waiver. This Agreement may only be amended,
modified or terminated prior to the end of its term by the mutual agreement of
the parties. The waiver by either party to this Agreement of a breach of any of
the provisions of this Agreement shall not operate or be construed as a waiver
of any subsequent or simultaneous breach.
22. Mitigation. Executive shall have no duty to attempt to mitigate the
compensation or level of benefits payable by the Company to him hereunder and
the Company shall not be entitled to set-off against the amounts payable by the
Company to Executive hereunder any amounts received by the Executive from any
other source, including any subsequent employer.
23. Governing Law. All of the terms and provisions of this Agreement shall
be construed in accordance with and governed by the applicable laws of the State
of Georgia.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
RARE HOSPITALITY MANAGEMENT, INC.
By:_____________________________
Title:
EXECUTIVE
_______________________________
XXXXXXXX XXXXXX
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INDEX TO EXHIBITS
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EXHIBIT DESCRIPTION
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A DEFINITIONS
B RESTRICTED AREA
EXHIBIT A
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DEFINITIONS
As used in Section 3 of this Agreement, the following terms shall have the
meanings ascribed to each below:
"Cause" means:
(i) the Executive's breach of any material obligations under this
Agreement; provided, however, that if such breach can be cured, Executive shall
have thirty (30) days following receipt from the Company of written notice of
such breach within which to do so before said breach is deemed to constitute
"Cause" for termination;
(ii) habitual and unauthorized absenteeism by reason other than physical or
mental illness;
(iii) chronic alcoholism or other form of substance abuse resulting in
material harm or actual or potential physical danger to any RARE Entity or its
employees;
(iv) the commission by Executive of (a) a felony for which Executive is
indicted or with respect to which Executive pleads nolo contendere (or any
similar response), (b) any act or moral turpitude or (c) any fraud or
embezzlement upon a RARE Entity; or (v) the engaging by the Executive in
negligence or willful misconduct which is injurious to RARE, monetarily or
otherwise.
"Change of Control" means and includes each of the following:
(i) The acquisition, at one time or over time, by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (the "1934 Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of 50% or more
of the combined voting power of the then outstanding voting securities of the
RARE Hospitality International, Inc. ("RARE Parent") entitled to vote generally
in the election of directors (the "Outstanding Corporation Voting Securities");
provided, however, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change of Control; (a) any acquisition by a
Person who is on the date of this Agreement the beneficial owner of 50% or more
of the Outstanding Corporation Voting Securities, (b) any acquisition by RARE
Parent, or (c) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by RARE Parent or any corporation controlled by RARE
Parent;
(ii) Consummation of a reorganization, merger, share exchange or
consolidation or sale of other disposition of all or substantially all of the
assets of RARE Parent (a "Business Combination"), in each case unless following
such Business Combination, (i) all of substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Corporation Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 60% of the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such
transaction owns RARE Parent or all or substantially all of RARE Parent's assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership immediately prior to such Business Combination of
the Outstanding Corporation Voting Securities, and (ii) no Person (excluding any
corporation resulting from such Business Combination or any employee benefit
plan (or related trust) of RARE Parent or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 50% or more of
the combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination, and (iii) at least a majority of the members of the board
of directors of the corporation resulting from such Business Combination were
members of the incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination.
"Disability" or "Disabled" shall mean that by reason of any physical or
mental incapacity Executive has been unable, or it is reasonably expected that
he will be unable, for a period of at least ninety (90) substantially continuous
days to perform his regular duties and responsibilities hereunder. In the event
of any disagreement between Executive and the Company as to whether Executive is
physically or mentally incapacitated, the question of such incapacity shall be
submitted to an impartial and reputable physician for determination, selected by
mutual agreement of Executive and the Company or, failing such agreement,
selected by two physicians (one of which shall be selected by the Company and
the other by Executive), and such determination of the question of such
incapacity by such physician shall be final and binding on Executive and the
Company. The Executive shall pay the fees and expenses of such physician.
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EXHIBIT B
Executive and the Company agree that for purposes of this Agreement, the
"Restricted Area" shall constitute the area within fifteen (15) miles of RARE's
restaurants in the following cities:
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Alabama Auburn, Xxxxxx, Dothan, Hoover, Huntsville, Mobile, Montgomery, Prattville
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Arizona Phoenix
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Colorado Denver
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Connecticut Manchester
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Delaware Newark
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District of Columbia
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Florida Altamonte Springs, Boynton Beach, Xxxxxxx, Citrus Park, Coral Springs,
Daytona Beach, Davie, Delray Beach, Destin, Xxxxxxx Island, Ft. Lauderdale,
Ft. Xxxxx, Hollywood, Jacksonville Beach, Jacksonville, Xxxxxx Beach,
Kissimmee, Xxxx Xxxx, Largo, Xxxxxxx Island, Miami, Naples, Ocala, Orlando,
Palm Harbor, Pembroke Pines, Port Xxxxxx, Sarasota, St. Augustine, St.
Petersburg, Southchase, Tallahassee, Tampa, West Palm Beach, Winter Haven
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Georgia Albany, Alpharetta, Athens, Atlanta, Augusta, Austell, Buford, Canton,
Cartersville, Chamblee, College Park, Columbus, Conyers, Cumming, Dalton,
Douglasville, Duluth, East Point, Fayetteville, Gainesville, Xxxxx,
Jonesboro, Kennesaw, Lawrenceville, Lithonia, Macon, Marietta, McDonough,
Newnan, Orange Park, Peachtree City, Rome, Roswell, Savannah, Snellville,
Statesboro, Tifton, Xxxxxx, Valdosta, Warner Xxxxxxx, Woodstock
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Illinois Chicago, Fairview Heights
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Indiana Avon, Carmel, Indianapolis
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Kansas Kansas City, Xxxxxxxx, Leawood, Speedway, Topeka
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Kentucky Bowling Green, Cold Spring, Xxxxxxxx, Lexington, Louisville
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Maine Augusta, Bangor, Portland
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Maryland Bowie, Columbia, Gaithersburg, Germantown, Hagerstown, Landover, Waldorf
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Massachusetts Boston, Braintree, Chestnut Hill, Dedham, Framingham, Haverhill,
Leominister, Marlborough, Methuen, Milford, North Attleboro, Peabody,
Seekonk, Shrewsbury, Watertown, West Springfield
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Michigan Auburn Hills, Roseville, Xxxx
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Minnesota Minneapolis
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Missouri Ballwin, Belton, Chesterfield, East Columbia, Florissant, Independence,
Jefferson City, Kansas City, Xxx'x Summit, O'Fallon, St. Xxxxxx, Sunset Hills
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New Hampshire Concord, Manchester, Newington
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B-1
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New Jersey Flanders, Howell, Mt. Olive, Nashua, N. Brunswick, Parsippany, Piscataway,
Xxxxxxxx Park
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New York Albany, New York, Poughkeepsie, Rochester
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North Carolina Burlington, Charlotte, Concord, Gastonia, Greensboro, Hickory, High Point,
Huntersville, Pineville, Wilmington, Winston-Salem
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Ohio Beaver Creek, Xxxxxxxx, Cincinnati, Cleveland, Columbus, Cuyahoga Falls,
Dublin, Fairview Park, Independence, Xxxxxxxx Heights, Maumee, Medina,
Mentor, Moraine, North Canton, Pickerington, Solon, Springdale, St.
Xxxxxxxxxxx, West Xxxxxxx, Wooster
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Pennsylvania Bensalem, Erie, Exton, Norristown, Philadelphia
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Rhode Island Providence, Warwick
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South Carolina Anderson, Columbia, Greenville, Hilton Head, Mt. Pleasant, N. Charleston,
Rock Hill, Spartanburg
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Tennessee Chattanooga, Clarksville, Hermitage, Jackson, Madison, Nashville
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Texas Dallas, Houston
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Vermont Williston
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Xxxxxxxx Xxxxxx, XxXxxx
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West Virginia Charleston
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Executive acknowledges and agrees that the geographical area described
above is the area in which Executive will initially perform his services for the
Company, and that the area in which such services are performed is intended to
expand as the business of the RARE Entities grows. Executive and the Company
agree that as the geographical area in which the RARE Entities conduct their
business expands, the list of cities described on this Exhibit B shall be deemed
to be amended, from time to time, without any further consent, action or notice
on the part of the Company or Executive, to include each additional city in
which any member of the RARE Entities operates a restaurant or a franchisee of a
RARE Entity operates a restaurant under the terms of a franchise from the RARE
Entity. Executive agrees to execute one or more amendments hereto upon the
request of the Company from time to time in order to confirm such amended list.
B-2
