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 Xxxx X. Xxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, Executive will be the Chairman of the Board, Secretary and
Treasurer 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:
0.0.0.1. Employment. The Company agrees to and does hereby employ the
Executive to perform the duties of Chairman of the Board, Secretary and
Treasurer of the Company, and Executive accepts such employment, upon the
terms and conditions set forth herein.
0.0.0.2. 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.
Page 1 of 17
0.0.0.3. Duties and Services.
0.0.0.3.1. Executive agrees to serve the Company as the
Chairman of the Board, Secretary and Treasurer 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 Chairman of the Board, Secretary and Treasurer.
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.
0.0.0.3.2. The duties and
responsibilities of Executive shall be commensurate with those of the
chairman of the board, secretary and treasurer of any publicly-held
corporation similar to the Company.
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0.0.0.4. Compensation.
0.0.0.4.1. 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").
0.0.0.4.2. 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.
0.0.0.4.3. Executive shall not
receive any additional compensation for his
services as a member of the Board.
0.0.0.4.4. 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.
0.0.0.5. Termination for Cause.
0.0.0.5.1. 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.
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0.0.0.5.2. For the purposes of this Agreement, "Cause" shall
mean that, prior to any termination pursuant to Section 5(a) hereof,
Executive shall have committed:
0.0.0.5.2.0.1. 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
0.0.0.5.2.0.2. 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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0.0.0.6. Termination Compensation.
0.0.0.6.1. 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.
0.0.0.6.2. For the purposes of this
Agreement, "Constructive Discharge" shall mean:
0.0.0.6.2.0.1. a material reduction in
Executive's job function, authority,
duties or responsibilities, or a similar
change in Executive's reporting
relationships;
0.0.0.6.2.0.2. a required relocation of
Executive of more than 35 miles from
Executive's current job location;
0.0.0.6.2.0.3. 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
0.0.0.6.2.0.4. 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.
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0.0.0.6.3. 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.
0.0.0.7. 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.
0.0.0.8. 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.
0.0.0.9. Change in Control of the Company.
0.0.0.9.1. 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.
0.0.0.9.2. 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.
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0.0.0.10. Certain Additional Payments by the
Company.
0.0.0.10.1. 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.
0.0.0.10.2. 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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0.0.0.10.3. 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.
0.0.0.10.4. 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.
0.0.0.11. Other Benefits.
0.0.0.11.1. Except as expressly
provided herein, this Agreement shall not:
0.0.0.11.1.0.1. 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
0.0.0.11.1.0.2. 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.
0.0.0.11.2. 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.
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0.0.0.11.3. 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.
0.0.0.12. 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.
0.0.0.13. Confidentiality.
0.0.0.13.1. 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.
0.0.0.13.2. 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.
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0.0.0.14. Non-Competition.
0.0.0.14.1. 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.
0.0.0.14.2. 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.
0.0.0.14.3. 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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0.0.0.15. 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.
0.0.0.16. 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.
0.0.0.17. Successors and Binding Agreement.
0.0.0.17.1. 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.
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0.0.0.17.2. 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.
0.0.0.17.3. 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.
0.0.0.18. 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.
0.0.0.19. 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.
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0.0.0.20. Mutual Agreement to Arbitrate.
0.0.0.20.1. 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.
0.0.0.20.2. 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.
0.0.0.20.3. 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.
0.0.0.20.3.0.1. 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.
0.0.0.20.3.0.2. 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.
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0.0.0.20.3.0.3. 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.
0.0.0.20.3.0.4. 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.
0.0.0.20.3.0.5. 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.
0.0.0.20.3.0.6. 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.
Page 14 of 17
(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.
Page 15 of 17
0.0.0.21. 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.
0.0.0.22. 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.
0.0.0.23. Survival of Certain Provisions. Notwithstanding anything
herein to the contrary, the obligations of the Company under Sections 6, 8,
9, 10, 11, 15 and 20 hereof, to the extent applicable, shall remain
operative and in full force and effect regardless of the expiration, for
any reason, of the Term.
0.0.0.24. 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.
0.0.0.25. 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.
0.0.0.26. 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 16 of 17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
U.S. RESTAURANT PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Chief Executive Officer and President
Address:
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Individually
Address:
Page 17 of 17
