EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of October 15, 1997,
by and between U.S. Restaurant Properties, Inc., a Maryland corporation (the
"Company"), and Xxxxxx X. Xxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, Executive will be the Chief Executive Officer and President of the
Company and is expected to make major contributions to the short- and long-term
profitability, growth and financial strength of the Company;
WHEREAS, the Company desires (a) to assure itself of both present and
future continuity of management, (b) to continue certain minimum termination
benefits for Executive, and (c) to provide additional inducement for Executive
to continue to remain in the ongoing employ of the Company; and
WHEREAS, Executive is willing to render services to the Company on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements set forth herein, the Company and Executive agree as follows:
1. Employment. The Company agrees to and does hereby employ the Executive
to perform the duties of Chief Executive Officer and President of the Company,
and Executive accepts such employment, upon the terms and conditions set forth
herein.
2. Term. The term of this Agreement shall be the period commencing as of
the date set forth above and continuing thereafter for a period of four years
(as extended as hereinafter provided, the "Term"); provided, however, that at
the end of such four year period and each anniversary date thereafter, the Term
will automatically be extended for an additional year unless, not later than 60
days prior to the end of such four year period or any such anniversary date, as
the case may be, the Company or Executive shall have given notice that it or
Executive, as the case may be, does not wish to have the Term extended.
3. Duties and Services.
(a) Executive agrees to serve the Company as the Chief Executive Officer
and President and to devote his attention and energies to the business of the
Company. Executive will not be prevented from (i) engaging in any civic or
charitable activity for which Executive receives no compensation or other
pecuniary advantage; (ii) investing his personal assets in businesses which do
not compete with the Company, provided that such investment will not require any
services on the part of Executive in the operation of the affairs of the
businesses in which investments are made which would unreasonably interfere with
his obligations hereunder; (iii) purchasing securities in any corporation whose
securities are publicly traded, provided that such purchases will not result in
Executive owning beneficially at any time five percent (5%) or more of the
equity securities of any corporation engaged in a business competitive with that
of the Company; (iv) serving as a director of any corporation that does not
engage in a Competitive Activity (as defined in Section 15 hereof); or (v)
participating in any other activity approved in advance in writing by the Board.
Executive also agrees to perform from time to time such other executive services
as the Company shall reasonably request, provided that such services shall be
consistent with his position and status as Chief Executive Officer and
President. In attending to the business and affairs of the Company, Executive
agrees to serve the Company faithfully, diligently and to the best of his
ability. Executive shall be entitled to continue to serve as a director and
officer of QSV Properties, Inc. and perform certain ongoing business functions
in connection therewith, provided that such activities do not unreasonably
interfere with his obligations hereunder.
(b) The duties and responsibilities of Executive shall be commensurate with
those of the chief executive officer and president of any publicly-held
corporation similar to the Company.
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4. Compensation.
(a) As consideration for the services to be rendered hereunder by
Executive, the Company agrees to pay Executive, and Executive agrees to accept,
payable in accordance with the Company's standard payroll practices for
executives, but payable in not less than monthly installments, compensation of
Two Hundred Fifty Thousand Dollars ($250,000) per annum or such greater amount
as may be determined from time to time by the Board pursuant to performance
reviews to be conducted on an annual basis or such shorter time period as the
Board shall deem appropriate (the "Salary").
(b) Executive shall be eligible to receive an annual incentive bonus
(whether in cash and/or securities) as provided for in any incentive plan of the
Company, including, without limitation, stock option and/or stock bonus plans,
based on the level of accomplishment of specific performance targets established
by the Board or any committee thereof, or such other bonus plans as may be
adopted by the Board from time to time in the future. In addition, Executive
shall participate in any Company perquisite and supplemental benefit programs
established for the benefit of senior executives of the Company.
(c) Executive shall not receive any additional compensation for his
services as a member of the Board.
(d) Notwithstanding anything in this Section 4 to the contrary, prior to
December 31, 2000, Executive shall not be entitled to receive cash compensation
payable in accordance with this Section 4 (whether Salary and/or bonus) in
excess of $300,000 per annum.
5. Termination for Cause.
(a) Subject to the provisions of Section 20 hereof, in the event that
Executive shall be discharged for "Cause" as provided in Section 5(b) hereof,
all compensation payable to Executive pursuant to Section 4 in respect of
periods after such discharge shall terminate immediately upon such discharge,
and the Company shall have no obligations with respect thereto, nor shall the
Company be obligated to pay Executive severance compensation under Section 7
hereof.
(b) For the purposes of this Agreement, "Cause" shall mean that, prior to
any termination pursuant to Section 5(a) hereof, Executive shall have committed:
(i) an intentional act or acts of fraud, embezzlement or theft constituting
a felony and resulting or intended to result directly or indirectly in gain or
personal enrichment for Executive at the expense of the Company; or
(ii) the continued, repeated, intentional and willful refusal to perform
the duties associated with Executive's position with the Company, which is not
cured within 15 days following written notice to Executive.
For purposes of this Agreement, no act or failure to act on the part of
Executive shall be deemed "intentional" if it was due primarily to an error in
judgment or negligence, but shall be deemed "intentional" only if done or
omitted to be done by Executive not in good faith and without reasonable belief
that his action or omission was in the best interest of the Company.
Executive shall not be deemed to have been terminated for "Cause" hereunder
unless and until there shall have been delivered to Executive a copy of a
resolution duly adopted by the affirmative vote of not less than a majority of
the Board then in office at a meeting of the Board called and held for such
purpose, after reasonable notice to Executive and an opportunity for Executive,
together with his counsel (if Executive chooses to have counsel present at such
meeting), to be heard before the Board, finding that, in the good faith opinion
of the Board, Executive had committed an act constituting "Cause" as herein
defined and specifying the particulars thereof in detail. Nothing herein will
limit the right of Executive or his beneficiaries to contest the validity or
propriety of any such determination, including submitting the decision for
review pursuant to Section 20 hereof.
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6. Termination Compensation.
(a) If, during the Term, Executive's employment is terminated (i) for any
reason other than (A) pursuant to Section 5(a) hereof, (B) by reason of death or
(C) by reason of "Disability" or (ii) by Executive due to "Constructive
Discharge," then Executive shall receive termination pay in an amount equal to
two times the highest annualized rate of Executive's Salary prior to the date of
termination, payable in cash within five business days of the date of
termination.
(b) For the purposes of this Agreement, "Constructive Discharge" shall
mean:
(i) a material reduction in Executive's job function, authority, duties or
responsibilities, or a similar change in Executive's reporting relationships;
(ii) a required relocation of Executive of more than 35 miles from
Executive's current job location;
(iii) any breach of any of the terms of this Agreement by the Company which
is not cured within 15 days following written notice thereof by Executive to the
Company; or
(iv) in the event of a "Change in Control" (as hereinafter defined)
Executive has reasonably determined that, as a result of a change in
circumstances following the Change in Control of the Company that significantly
affect his employment, he is unable to exercise the authority, proven duties and
responsibilities contemplated by Section 3 hereof;
provided, however, that the term "Constructive Discharge" shall not include
a specific event described in the preceding clause (i), (ii), (iii), (iv) or (v)
unless Executive actually terminates his employment with the Company within 60
days after the occurrence of such event.
(c) The amount of compensation payable pursuant to this Section 6 is not
subject to any deduction (except for withholding taxes), reduction, offset or
counterclaim, and the Company may not give advance notice of termination in lieu
of the payment provided for in this Section 6.
7. Termination in the Event of Death. This Agreement shall terminate
automatically upon the death of Executive. In such event, the Company shall pay
to Executive's legal representative only the base salary due to the Executive up
to the date of termination as well as incentive bonuses, which have accrued
through the date of termination, and benefits payable pursuant to this
Agreement.
8. Termination in the Event of Disability. If during the Term, Executive
becomes physically or mentally disabled so as to become unable, for a period of
more than six (6) consecutive months, to perform his duties hereunder on
substantially a full time basis ("Disability"), the Company may at its option
terminate Executive's employment hereunder upon not less than thirty (30) days'
written notice. In the event of such termination, Executive shall be entitled to
continue to receive his base salary and benefits, excluding any incentive
bonuses, for a period equal to the lesser of (a) twenty-four (24) months from
the date of termination and (b) the remainder of the Term, and then shall
receive such benefits as are available to senior executives of the Company under
any applicable disability plan.
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9. Change in Control of the Company.
(a) If a Change in Control (as hereinafter defined) of the Company occurs
prior to the scheduled expiration of the Term and within three years after the
Change in Control of the Company (i) Executive is terminated by the Company for
reasons other than (A) death, (B) Disability or (C) Cause or (ii) Executive
terminates his employment as a result of Construction Discharge, the Company,
within 30 days of Executive's termination of employment, will pay to Executive,
in lieu of any severance obligation under Section 6 hereof, an amount equal to
2.99 times Executive's compensation, which, for purposes of this Section 9,
shall mean an amount equal to the highest annualized rate of Executive's Salary
prior to the date of termination, plus Executive's cash bonus for the year
immediately prior to such termination.
(b) For purposes of this Agreement, a "Change in Control" shall have
occurred if at any time during the Term either of the following events occurs:
(i) The Company is merged, consolidated or reorganized into or with another
corporation or other legal person and as a result of such merger, consolidation
or reorganization less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person immediately after such
transaction are held in the aggregate by the holders of Voting Stock (as
hereinafter defined) of the Company immediately prior to such transaction; or
(ii) The Company sells all or substantially all of its assets to any other
corporation or other legal person, less than a majority of the combined voting
power of the then-outstanding voting securities of which are held in the
aggregate by the holders of Voting Stock of the Company immediately prior to
such sale.
10. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event that it shall be determined (as hereafter provided) that any payment or
distribution by the Company to or for the benefit of Executive, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise pursuant to or by reason of any other agreement, policy, plan,
program or arrangement (a "Payment"), would be subject to the excise tax imposed
by Section 4999 (or any successor provision thereto) of the Internal Revenue
Code of 1986, as amended (the "Code"), or any interest or penalties with respect
to such excise tax (such excise tax, together with any such interest and
penalties, are hereafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled to receive an additional payment or payments (a
"Gross-Up Payment") in an amount such that, after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax imposed upon the Gross-Up Payment, Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(b) All determinations required to be made under this Section 10, including
whether an Excise Tax is payable by Executive and the amount of such Excise Tax
and whether a Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall be made by a nationally recognized firm of certified public
accountants (the "Accounting Firm") selected by Executive in his sole
discretion. Executive shall direct the Accounting Firm to submit its
determination and detailed supporting calculations to both the Company and
Executive within 15 calendar days after the termination date, if applicable, or
such earlier time or times as may be requested by the Company or Executive. If
the Accounting Firm determines that any Excise Tax is payable by Executive, the
Company shall pay the required Gross-Up Payment to Executive within five
business days after receipt of such determination and calculations. If the
Accounting Firm determines that no Excise Tax is payable by Executive, it shall,
at the same time as it makes such determination, furnish Executive with an
opinion that he has substantial authority not to report any Excise Tax on his
federal income tax return. Any determination by the Accounting Firm as to the
amount of the Gross-Up Payment shall be binding upon the Company and Executive.
As a result of the uncertainty in the application of Section 4999 of the Code
(or any successor provision thereto) at the time of the initial determination by
the Accounting Firm hereunder, it is possible that Gross-Up Payments which will
not have been made by the Company should have been made (an "Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that Executive is required to make a payment of any Excise Tax, Executive shall
direct the Accounting Firm to determine the amount of the Underpayment that has
occurred and to submit its determination and detailed supporting calculations to
both the Company and Executive as promptly as possible. Any such Underpayment
shall be promptly paid by the Company to, or for the benefit of, Executive
within five business days after receipt of such determination and calculations.
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(c) The Company and Executive shall each provide the Accounting Firm access
to and copies of any books, records and documents in the possession of the
Company or Executive, as the case may be, reasonably requested by the Accounting
Firm, and otherwise cooperate with the Accounting Firm in connection with the
preparation and issuance of the determination contemplated by Section 10(b)
hereof.
(d) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by Section
10(b) hereof shall be borne by the Company. If such fees and expenses are
initially paid by Executive, the Company shall reimburse Executive the full
amount of such fees and expenses within five business days after receipt from
Executive of a statement therefor and reasonable evidence of his payment
thereof.
11. Other Benefits.
(a) Except as expressly provided herein, this Agreement shall not:
(i) be deemed to limit or affect the right of Executive to receive other
forms of additional compensation or to participate in any insurance, retirement,
disability, profit-sharing, stock purchase, stock option, stock appreciation
rights, cash or stock bonus or other plan or arrangement or in any other
benefits now or hereafter provided by the Company or any of the Company's
affiliated companies for its employees; or
(ii) be deemed to be a waiver by Executive of any vested rights which
Executive may have or may hereafter acquire under any employee benefit plan or
arrangement of the Company or any of the Company's affiliated companies.
(b) It is contemplated that, in connection with his employment hereunder,
Executive may be required to incur reasonable business, entertainment and travel
expenses. The Company agrees to reimburse Executive in full for all reasonable
and necessary business, entertainment and other related expenses, including
travel expenses, incurred or expended by him incident to the performance of his
duties hereunder, upon submission by Executive to the Company of such vouchers
or expense statements satisfactorily evidencing such expenses as may be
reasonably requested by the Company.
(c) It is understood and agreed by the Company that during the term of
Executive's employment hereunder, he shall be entitled to annual paid vacations
(taken consecutively or in segments), the length of which shall be consistent
with the effective discharge of Executive's duties and the general customs and
practices of the Company applicable to its executive officers.
12. No Mitigation Obligation. The Company hereby acknowledges that it will
be difficult and may be impossible (a) for Executive to find reasonably
comparable employment following the date of termination, and (b) to measure the
amount of damages which Executive may suffer as a result of termination of
employment hereunder. Accordingly, the payment of the termination compensation
by the Company to Executive in accordance with the terms of this Agreement is
hereby acknowledged by the Company to be reasonable and will be liquidated
damages, and Executive will not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
nor will any profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other obligation on
the part of Executive hereunder or otherwise.
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13. Confidentiality.
(a) Recognizing that the knowledge and information about the business
methods, systems, plans and policies of the Company and of its affiliated
companies which Executive has heretofore and shall hereafter receive, obtain or
establish as an employee of the Company or its affiliated companies are valuable
and unique assets of the Company and its affiliated companies, Executive agrees
that he shall not (otherwise than pursuant to his duties hereunder) disclose,
without the written consent of the Company, any confidential knowledge or
information pertaining to the Company or its affiliated companies, or their
business, personnel or plans, to any person, firm, corporation or other entity,
which would result in any material harm or damage to the Company, its business
or prospects, for any reason or purpose whatsoever, unless required by law or
legal process. In the event Executive is required by law or legal process to
provide documents or disclose information, he shall take all reasonable steps to
maintain confidentiality of documents and information including notifying the
Company and giving it an opportunity to seek a protective order, at its sole
cost and expense.
(b) The provisions of this Section 13 shall survive the expiration or
termination of this Agreement, without regard to the reason therefor, for a
period of two years from the earlier of (i) expiration of the Term or (ii)
termination of Executive's employment with the Company.
14. Non-Competition.
(a) Except as otherwise provided in Section 3 hereof, during the Term and
any period during which Executive receives any severance payments made pursuant
to Section 6, 8, 9(a) or 10(a) hereof and, in the event Executive's employment
is terminated (i) by the Company for Cause or (ii) by the Executive otherwise
than as a result of Constructive Discharge, for a period ending one (1) year
after the date Executive's employment is so terminated (the "Noncompetition
Period"), Executive shall not, directly or indirectly, either for himself or any
other person, own, manage, control, participate in, invest in, permit his name
to be used by, act as consultant or advisor to, render services for (alone or in
association with any individual, entity or other business organization) or
otherwise assist in any manner any individual or entity that engages in or owns,
invests in, manages or controls any venture or enterprise engaged in (each, a
"Competitive Activity") the ownership, management, acquisition or development of
restaurant properties or retail properties similar to those, if any, being
acquired by the Company on the date Executive's employment is so terminated.
Executive will not disseminate or make use of any of the confidential
information of the Company without qualification as to when or how such
information may have been acquired unless such information shall become publicly
available.
Executive will not in any manner induce, attempt to induce or assist others
to induce or attempt to induce any investor, client or tenant of the Company to
terminate its, his or her association with the Company or do anything to
interfere with the relationship between the Company and any of its customers,
clients, tenants or persons or concerns dealing with the Company during the
Noncompetition Period.
Executive will not, without the prior consent of a majority of the
Company's independent directors, solicit, hire away or employ any person who is
an employee of the Company during the Noncompetition Period.
(b) In the event that any restriction contained in this Section 14 shall be
held too broad to allow enforcement of such restriction to its full extent, then
such restriction shall be enforced to the maximum extent permitted by law, and
Executive hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restrictions.
(c) Executive acknowledges and agrees that the Company's remedy at law for
any breach of his obligations under this Section 14 may be inadequate, and
agrees and consents that temporary and/or permanent or injunctive relief may be
entered enjoining him from breaching this Agreement and further agrees that any
proceeding which may be brought to enforce any provision of this Section 14
without being requested to prove actual damages as a result of the premature
breach of this Agreement.
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15. Legal Fees and Expenses. It is the intent of the Company that Executive
not be required to incur legal fees and the related expenses associated with the
interpretation, enforcement or defense of Executive's rights under this
Agreement by litigation or otherwise because the cost and expense thereof would
substantially detract from the benefits intended to be extended to Executive
hereunder. Accordingly, if it should appear to Executive that the Company has
failed to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes or threatens to take any action
to declare this Agreement void or unenforceable or in any way reduce the
possibility of collecting the amounts due hereunder, or institutes any
litigation or other action or proceeding designed to deny, or to recover from,
Executive any payments or benefits provided hereunder, the Company irrevocably
authorizes Executive from time to time to retain counsel of Executive's choice,
at the expense of the Company as hereafter provided, to advise and represent
Executive in connection with any such interpretation, enforcement or defense,
including, without limitation, the initiation or defense of any litigation or
other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
The Company will pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred at the time they are billed by
Executive in connection with any of the foregoing, except only in the event of
litigation where the Company fully and finally prevails on all causes of action.
16. Withholding of Taxes. The Company may withhold from any amounts payable
under this Agreement all federal, state, city or other taxes as the Company is
required to withhold pursuant to any law or government regulation or ruling.
17. Successors and Binding Agreement.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all or
substantially all of the business or assets of the Company, by agreement in form
and substance satisfactory to Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent the Company
would be required to perform if no such succession had taken place. This
Agreement will be binding upon and inure to the benefit of the Company and any
successor to the Company, including, without limitation, any persons acquiring
directly or indirectly all or substantially all of the business or assets of the
Company whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor shall thereafter be deemed the "Company" for the purposes of
this Agreement), but will not otherwise be assignable, transferable or delegable
by the Company.
(b) This Agreement will inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereunder except as expressly provided in
Sections 17(a) and 17(b) hereof and with respect to the Company's obligation to
pay legal fees and expenses under Section 15 hereof. Without limiting the
generality or effect of the foregoing, Executive's right to receive payments
hereunder will not be assignable, transferable or delegable, whether by pledge,
creation of a security interest or otherwise, other than by a transfer by
Executive's will or by the laws of descent and distribution and, in the event of
any attempted assignment or transfer contrary to this Section 17(c), the Company
shall have no liability to pay any amount so attempted to be assigned,
transferred or delegated, except with respect to legal fees and expenses, as and
to the extent provided in Section 15 hereof.
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18. Notices. For all purposes of this Agreement, all communications,
including, without limitation, notices, consents, requests or approvals,
required or permitted to be given hereunder will be in writing and will be
deemed to have been duly given when hand delivered or dispatched by electronic
facsimile transmission (with receipt thereof orally confirmed), or five business
days after having been mailed by United States registered or certified mail,
return receipt requested, postage prepaid, or three business days after having
been sent by a nationally recognized overnight courier service such as Federal
Express, UPS or Purolator, addressed to the Company (to the attention of the
Secretary of the Company) at the address set forth on the signature pages of
this Agreement and to Executive at the address set forth on the signature pages
of this Agreement, or to such other address as any party may have furnished to
the other in writing and in accordance herewith, except that notices of changes
of address shall be effective only upon receipt.
19. Governing Law. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Texas, without giving effect to the
principles of conflict of laws of such State.
20. Mutual Agreement to Arbitrate.
(a) The Company and Executive recognize that differences may arise between
them. Through the provisions of this Section 20, both parties expect to gain the
benefits of a speedy, economical, impartial dispute-resolution procedure.
Therefore, the parties agree that this Section 20 shall apply to all disputes or
controversies arising out of Executive's employment (or termination of that
employment) under this Agreement, that the Company may have against Executive,
or that Executive may have against the Company or against (as applicable) its
officers, directors, stockholders, partners, advisers or agents ("Claims").
Claims include, but are not limited to, controversies relating to: compensation
or benefits, breach of any contract, torts, discrimination under state, federal
or local law, and violation of any federal, state or other governmental law,
statute, regulation, or ordinance.
(b) Except as otherwise specifically stated in this Agreement, the sole and
exclusive method to resolve any Claim is arbitration as provided in this Section
20. The parties each waive their right to commence an action in any court to
resolve a Claim. Neither party shall initiate or prosecute any lawsuit in any
way related to any Claim covered by this Section 20.
(c) A Claim must be processed in the manner set forth below, otherwise the
Claim shall be void and deemed waived even if there is a federal or state
statute of limitations which would allow more time to pursue the Claim.
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(i) Any Claim not raised under Section 5 hereof must initially be presented
to the Company's Board of Directors (the "Board") in writing within ten (10)
days after the Executive initially knew or should have known of the facts that
gave rise to the Claim. The Board will answer the claim within ten (10) days
after the Claim was presented. If the Board fails to respond, it will be deemed
a denial of the Executive's Claim.
(ii) If Executive is not satisfied with the Board's decision, or if the
Claim is made under Section 5 hereof, Executive may present the Claim for
resolution by final and binding arbitration pursuant to the terms of this
Section 20. If Executive desires to proceed to arbitration, Executive must give
written notice to the Company of Executive's intention to arbitrate within
thirty (30) days from the date of the Board's final decision.
(iii) If the Company desires to initiate arbitration, it must give written
notice to Executive within thirty (30) days after it initially knew or should
have known of the facts that gave rise to its Claim.
(iv) The written notice of desire to arbitrate shall describe the factual
basis of all Claims asserted, and shall be sent to the other party in accordance
with the terms of Section 18 hereof. If written notice of intention to arbitrate
is not given within the applicable time period, the party who failed to give
notice will be deemed to have waived the right to further contest the matter,
and will be deemed to have accepted the other party's last stated position on
the Claim.
(v) The arbitration shall be conducted in accordance with the then-current
Model Employment Arbitration Procedures of the American Arbitration Association
("AAA") before a single arbitrator (the "Arbitrator"). The arbitration shall
take place in or near the city in which Executive is or was last working with
the Company. All arbitrations shall be governed by the laws of the State of
Texas, the location of the principal executive office of the Company.
(vi) The Arbitrator shall be selected in the following manner. The AAA
shall give each party a list of at least six arbitrators drawn from its panel of
labor and employment arbitrators. Each side may strike all names on the list it
deems unacceptable. If only one common name remains on the list of all parties,
that individual shall be the Arbitrator. If more than one common name remains on
the list of all parties, the parties shall strike names alternately until only
one remains. If no common name remains on the list of all parties, the AAA shall
furnish one additional list, and the above procedure will be utilized. If no
Arbitrator is designated from the second list, the procedure of the AAA rules
will be utilized to select the Arbitrator. In no event will the Arbitrator be
then affiliated in any manner with a competitor of the Company.
A. Any party may be represented by an attorney or other representative
selected by the party.
B. Each party shall have the right to take the deposition of one individual
and any expert witness designed by another party. Each party also shall have the
right to make requests for production of documents to any party. Additional
discovery may be had only where the arbitrator so orders, upon a showing of
substantial need. All issues related to discovery will be resolved by the
Arbitrator.
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(vii) At least fourteen (14) days before the arbitration, the parties must
exchange lists of witnesses, including any expert, and copies of all exhibits
intended to be used at the arbitration.
(viii) The Arbitrator will have no authority to: (A) adopt new Company
policies or procedures, (B) modify this Agreement or existing Company policies,
procedures, wages or benefits, or (C) hear or decide any matter that was not
processed in accordance with this Agreement. The Arbitrator shall have exclusive
authority to resolve any Claim, including, but not limited to, a dispute
relating to the interpretation, applicability, enforceability or formation of
this Agreement, or any contention that all or any part of this Agreement is void
or voidable. The arbitrator will have the authority to award any form of remedy
or damages that would be available in a court.
(ix) The Company shall pay reasonable and necessary fees of the AAA and the
Arbitrator. The parties will pay their own attorneys' fees and expenses
associated with the arbitration.
(x) Either party, in its sole discretion, may, in writing, waive, in whole
or in part, the other's failure to follow any time or other requirement set
forth in this Agreement.
(xi) The arbitration will be conducted in private, and will not be open to
the public or the media. The testimony and other evidence presented, and the
results of the arbitration, unless otherwise agreed to by both parties, are
confidential and may not be made public or reported by any news agency or legal
publisher or service.
(xii) The Arbitrator shall render a written decision and award (the
"Award"), which shall set forth the facts and reasons that support the Award.
The Award shall be final and binding on the Company and Executive.
21. Validity. If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid, unenforceable
or otherwise illegal, the remainder of this Agreement and the application of
such provision to any other person or circumstances will not be affected, and
the provision so held to be invalid, unenforceable or otherwise illegal will be
reformed to the extent (and only to the extent) necessary to make it
enforceable, valid or legal.
22. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by Executive and the Company. No waiver by either party hereto at
any time of any breach by the other party hereto or compliance with any
condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. Except as otherwise identified, references to Sections are references
to Sections of this Agreement.
23. Survival of Certain Provisions. Notwithstanding anything herein to the
contrary, the obligations of the Company under Sections 6, 8, 9, 10, 11 and 15
hereof, to the extent applicable, shall remain operative and in full force and
effect regardless of the expiration, for any reason, of the Term.
24. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same agreement.
25. Warranty. Executive warrants and represents that he is not a party to
any agreement, contract or understanding, whether of employment or otherwise,
which would in any way restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions of this Agreement.
26. Prior Agreements. This Agreement shall in all respects supersede all
previous agreements providing severance pay benefits, whether written or oral,
between Executive and the Company.
Page 10 of 11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
U.S. RESTAURANT PROPERTIES, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Chairman of the Board, Treasurer
and Secretary
Address:
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
/s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx, Individually
Address:
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Page 11 of 11
