Exhibit 10.6
EMPLOYMENT AGREEMENT
(XXXXXX X. XXXXX)
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of May
5, 2004 by and between TEXAS ROADHOUSE, INC., a Delaware corporation (the
"Company"), and XXXXXX X. XXXXX, a resident of the State of Texas ("Executive").
RECITALS
A. The Company is preparing for an initial public offering (the "IPO")
of its shares of Class A Common Stock, $0.001 par value ("CLASS A COMMON
STOCK"), and has filed a Registration Statement on Form S-1 (the "REGISTRATION
STATEMENT") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended.
B. Texas Roadhouse Management Corp., a Kentucky corporation
("MANAGEMENT CORP."), has entered into an agreement to merge with a wholly-owned
subsidiary of the Company effective immediately prior to the closing of the IPO.
C. Executive is currently employed by Management Corp. as its Executive
Vice President of Operations, pursuant to an Employment Agreement dated January
1, 1999, between Management Corp. and Executive (the "PRIOR EMPLOYMENT
AGREEMENT").
D. Executive has been appointed as the Chief Operating Officer of the
Company.
E. The Company desires that the employment of Executive, and Executive
wishes such employment, as Chief Operating Officer of the Company following the
IPO, to be governed by the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements of the Company and Executive set forth below, the Company
and Executive, intending to be legally bound, agree as follows:
1. EFFECTIVE DATE. The terms and conditions of Executive's
employment hereunder shall become effective upon completion and closing
of the IPO (the "EFFECTIVE DATE"). Notwithstanding the preceding
sentence, the terms and conditions of Executive's employment hereunder
shall not become effective and this Agreement shall immediately
terminate if, prior to the Effective Date, any of the following shall
occur: (a) Executive resigns from his employment with Management Corp.,
(b) the death or Disability (as defined in Section 10 hereof) of
Executive, (c) the withdrawal of the Registration Statement prior to
its effectiveness, (d) if the IPO does not close on or prior to
December 31, 2004, or (e) Executive's employment is terminated by
Management Corp. Neither Executive nor the Company may revoke or cancel
this Agreement prior to the Effective Date without written agreement of
the other party.
2. EMPLOYMENT. Subject to all the terms and conditions of this
Agreement, Executive's period of employment under this Agreement shall
be the period commencing on the Effective Date and ending on the last
day of the twelfth full fiscal quarter following the Effective Date
(the "THIRD ANNIVERSARY DATE"), which initial twelve fiscal quarter
term, unless otherwise agreed to by the parties, shall be extended on
the Third Anniversary Date and on each anniversary of that date
thereafter, for a period of four fiscal quarters thereafter (which
initial twelve fiscal quarter term together with any such extensions,
if any, the "TERM"), unless the Executive's employment terminates
earlier in accordance with Section 9 hereof. Thereafter, if Executive
continues in the employ of the Company, the employment relationship
shall continue to be at will, terminable by either Executive or the
Company at any time and for any reason, with or without cause, and
subject to such terms and conditions established by the Company from
time to time.
3. POSITION AND DUTIES.
(a) EMPLOYMENT WITH THE COMPANY. While Executive is employed
by the Company during the Term, Executive shall be employed as the
Chief Operating Officer of the Company, and such other titles as the
Company may designate, and shall perform such duties and
responsibilities as the Company shall assign to him from time to time,
including duties and responsibilities relating to the Company's
wholly-owned and partially owned subsidiaries and other affiliates.
(b) PERFORMANCE OF DUTIES AND RESPONSIBILITIES. Executive
shall serve the Company faithfully and to the best of his ability and
shall devote his full working time, attention and efforts to the
business of the Company during his employment with the Company
hereunder. While Executive is employed by the Company during the Term,
Executive shall report to the Chief Executive Officer of the Company or
to such other person as designated by the Board of Directors of the
Company (the "BOARD"). Executive hereby represents and confirms that he
is under no contractual or legal commitments that would prevent him
from fulfilling his duties and responsibilities as set forth in this
Agreement. During his employment with the Company, Executive shall not
accept other employment or engage in other material business activity,
except as approved in writing by the Board. Executive may participate
in charitable activities and personal investment activities to a
reasonable extent, and he may serve as a director of business
organizations as approved by the Board, so long as such activities and
directorships do not interfere with the performance of his duties and
responsibilities hereunder.
4. COMPENSATION.
(a) BASE SALARY. While Executive is employed by the Company
during the Term, the Company shall pay to Executive a base salary at
the rate of Four Hundred Thousand and no/100 Dollars ($400,000.00) per
fiscal year, less deductions and withholdings, which base salary shall
be paid in accordance with the Company's normal payroll policies and
procedures. The Executive's base salary may be reviewed by the
Compensation Committee of the Board on or after September 30, 2005, and
annually thereafter, to determine whether it should be increased.
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(b) INCENTIVE BONUS. Commencing with the first full fiscal
quarter following the Effective Date and for each full fiscal quarter
thereafter that Executive is employed by the Company during the Term,
Executive shall be eligible for a quarterly incentive bonus in an
amount up to Fifty Thousand and no/100 Dollars ($50,000.00), based upon
achievement of defined goals established by the Compensation Committee
of the Board and in accordance with the terms of any incentive plan of
the Company in effect from time to time (the "INCENTIVE BONUS"). The
level of achievement of the objectives each fiscal quarter and the
amount payable as Incentive Bonus shall be determined in good faith by
the Compensation Committee. Any Incentive Bonus earned for a fiscal
quarter shall be paid to Executive on or before the 90th day following
the last day of such fiscal quarter. The amount of the Executive's
quarterly incentive bonus may be reviewed by the Compensation Committee
of the Board on or after September 30, 2005, and annually thereafter,
to determine whether it should be increased.
(c) STOCK OPTIONS.
(i) Pursuant to the 2004 Equity Incentive Plan of the
Company, as of the Effective Date, Executive shall be granted
options (the "OPTIONS") to purchase 120,000 shares of Class A
Common Stock at an exercise price equal to the price per share
at which shares of Class A Common Stock are offered to the
public in the IPO.
(ii) The Options shall vest in accordance with the
following schedule:
DATE AMOUNT VESTING
---- --------------
First Anniversary of the Effective Date 24,000 shares
Second Anniversary of Effective Date 24,000 shares
Third Anniversary of Effective Date 72,000 shares
(iii) If a share dividend, share split or share
combination shall occur with respect to the Common Shares of
Texas Roadhouse Holdings LLC, a
Kentucky limited liability
company, shall occur prior to the closing of the IPO, or such
Common Shares are exchanged for shares of Class A Common Stock
in connection with the IPO on a basis other than one-to-one,
the amounts set forth in this Section 4(c) shall be
correspondingly adjusted.
iv) In the event of a termination of Executive's
Employment other than for Cause (as defined below) or
termination by Executive for Good Reason (as defined below)
within 12 months following a Change of Control (as defined
below), or prior to a Change of Control at the direction of a
person who has entered into an agreement with the Company, the
consummation of which will constitute a Change of Control, and
contingent upon Executive's compliance with Section 10(g), the
Options and all other options granted under any stock option
and stock incentive plans of the Company that are outstanding
as of the
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date of termination shall become immediately exercisable in
full and shall remain exercisable until the earlier of (A)
two years after termination of Executive's employment by
the Company or (B) the option expiration date as set forth
in the applicable option agreement.
(v) A "CHANGE OF CONTROL" shall mean that one of the
following events has taken place at any time during the Term:
(A) The stockholders of the Company approve
one of the following:
(I) Any merger or statutory plan of
exchange involving the Company ("MERGER") in
which the Company is not the continuing or
surviving corporation or pursuant to which
the Common Stock, $0.001 par value ("COMMON
STOCK") would be converted into cash,
securities or other property, other than a
Merger involving the Company in which the
holders of Common Stock immediately prior to
the Merger have substantially the same
proportionate ownership of common stock of
the surviving corporation after the Merger;
or
(II) Any sale, lease, exchange, or
other transfer (in one transaction or a
series of related transactions) of all or
substantially all of the assets of the
Company or the adoption of any plan or
proposal for the liquidation or dissolution;
B) During any period of 12 months or less,
individuals who at the beginning of such period
constituted a majority of the Board of Directors
cease for any reason to constitute a majority thereof
unless the nomination or election of such new
directors was approved by a vote of at least
two-thirds of the directors then still in office who
were directors at the beginning of such period; or
C) A tender or exchange offer, other than
one made by:
(I) the Company, or by
(II) W. Xxxx Xxxxxx or any
corporation, limited liability company,
partnership, or other entity in which W.
Xxxx Xxxxxx owns (x) a direct or indirect
ownership of 50% or more or (y) controls 50%
or more of the voting power (collectively,
the "XXXXXX PARTIES")
is made for the Common Stock (or securities
convertible into Common Stock) and such offer results
in a portion of those securities being purchased and
the offeror after the consummation of the offer is
the beneficial owner (as determined pursuant to
Section 13(d) of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE Act")),
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directly or indirectly, of securities representing at
least 20 percent of the voting power of outstanding
securities of the Company; or
(D) the Company receives a report on
Schedule 13D of the Exchange Act reporting the
beneficial ownership by any person other than a
Xxxxxx Party of securities representing 20 percent or
more of the voting power of outstanding securities of
the Company, except that if such receipt shall occur
during a tender offer or exchange offer described in
(C) above, a Change of Control shall not take place
until the conclusion of such offer.
Notwithstanding anything in the foregoing to the
contrary, no Change of Control shall be deemed to have
occurred for purposes of this Agreement by virtue of any
transaction which results in Executive, or a group of persons
which includes Executive, acquiring, directly or indirectly,
securities representing 20 percent or more of the voting power
of outstanding securities of the Company.
vi) A termination by Executive for "Good Reason"
shall mean a termination based on:
(A) the assignment of Executive a different
title or job responsibilities that result in a
substantial decrease in the level of responsibility
from those in effect immediately prior to the Change
of Control;
(B) a reduction by the Company or the
surviving company in Executive's base pay as in
effect immediately prior to the Change of Control;
(C) a significant reduction by the Company
or the surviving company in total benefits available
to Executive under cash incentive, stock incentive
and other employee benefit plans after the Change of
Control compared to the total package of such
benefits as in effect prior to the Change of Control;
(D) the requirement by the Company or the
surviving company that Executive be based more than
50 miles from where Executive's office is located
immediately prior to the Change of Control, except
for required travel on company business to an extent
substantially consistent with the business travel
obligations which Executive undertook on behalf of
the Company prior to the Change of Control; or
(E) the failure by the Company to obtain
from any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of
the Company ("Successor") the assent to this
Agreement contemplated by Section 13(g) hereof.
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(d) BENEFITS. While Executive is employed by the Company
during the Term, Executive shall be entitled to participate in all
employee benefit plans and programs of the Company that are available
to executive officers generally to the extent that Executive meets the
eligibility requirements for each individual plan or program. The
Company provides no assurance as to the adoption or continuance of any
particular employee benefit plan or program, and Executive's
participation in any such plan or program shall be subject to the
provisions, rules and regulations applicable thereto.
(e) EXPENSES. While Executive is employed by the Company
during the Term, the Company shall reimburse Executive for all
reasonable and necessary out-of-pocket business, travel and
entertainment expenses incurred by him in the performance of his duties
and responsibilities hereunder, subject to the Company's normal
policies and procedures for expense verification and documentation.
(f) VACATIONS AND HOLIDAYS. Executive shall be entitled to be
absent from his duties for the Company by reason of vacation for a
period of four weeks per calendar year. Executive shall coordinate his
vacation schedule with the Company so as not to impose an undue burden
on the Company. In addition, Executive shall be entitled to such
national and religious holidays as the Board shall approve for all of
its employees from time to time.
5. AFFILIATED ENTITIES. As used in Sections 6, 7 and 8 of this
Agreement, "COMPANY" shall include the Company and each corporation,
limited liability company, partnership, or other entity that is
controlled by the Company, or is under common control with the Company
(in each case "control" meaning the direct or indirect ownership of 50%
or more of all outstanding equity interests).
6. CONFIDENTIAL INFORMATION. Except as required in the
performance of Executive's duties as an employee of the Company or as
authorized in writing by the Board, Executive shall not, either during
Executive's employment with the Company or at any time thereafter, use,
disclose or make accessible to any person any confidential information
for any purpose. "Confidential Information" means information
proprietary to the Company or its suppliers or prospective suppliers
and not generally known (including trade secret information) about the
Company's suppliers, products, services, personnel, customers, recipes,
pricing, sales strategies, technology, computer software code, methods,
processes, designs, research, development systems, techniques,
finances, accounting, purchasing, and plans. All information disclosed
to Executive or to which Executive obtains access, whether originated
by Executive or by others, during the period of Executive's employment
by the Company (whether before, during, or after the Term), shall be
presumed to be Confidential Information if it is treated by the Company
as being Confidential Information or if Executive has a reasonable
basis to believe it to be Confidential Information. Executive
acknowledges that the above-described knowledge and information
constitutes a unique and valuable asset of the Company and represents a
substantial investment of time and expense by the Company, and that any
disclosure or other use of such knowledge or information other than for
the sole benefit of the
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Company would be wrongful and would cause irreparable harm to the
Company. During Executive's employment with the Company, Executive
shall refrain from committing any acts that would materially reduce the
value of such knowledge or information to the Company. The foregoing
obligations of confidentiality shall not apply to any knowledge or
information that (i) is now or subsequently becomes generally publicly
known, or (ii) is required to be disclosed by law or legal process,
other than as a direct or indirect result of the breach of this
Agreement by Executive. Executive acknowledges that the obligations
imposed by this Section 6 are in addition to, and not in place of, any
obligations imposed by applicable statutory or common law.
7. NONCOMPETITION COVENANT.
(a) AGREEMENT NOT TO COMPETE. During Executive's employment
with the Company (whether before, during, or after the Term) and during
the Restricted Period (as defined below), Executive shall not, directly
or indirectly, on his own behalf or on behalf of any person or entity
other than the Company, including without limitation as a proprietor,
principal, agent, partner, officer, director, stockholder, employee,
member of any association, consultant or otherwise, engage in any
business that is directly competitive with the business of the Company,
including without limitation any business that operates one or more
full-service, casual dining steakhouse restaurants. The provisions of
this Section 7(a) shall also apply to any business which is directly
competitive with any other business which the Company acquires or
develops during Executive's employment with the Company.
(b) AGREEMENT NOT TO HIRE. Except as required in the
performance of Executive's duties as an employee of the Company, during
Executive's employment with the Company (whether before, during, or
after the Term) and during the Restricted Period, Executive shall not,
directly or indirectly, hire, engage or solicit or induce or attempt to
induce to cease working for the Company, any person who is then an
employee of the Company or who was an employee of the Company during
the six (6) month period immediately preceding Executive's termination
of employment with the Company.
(c) AGREEMENT NOT TO SOLICIT. Except as required in the
performance of Executive's duties as an employee of the Company, during
Executive's employment with the Company (whether before, during, or
after the Term) and during the Restricted Period, Executive shall not,
directly or indirectly, solicit, request, advise, induce or attempt to
induce any vendor, supplier or other business contact of the Company to
cancel, curtail, cease doing business with, or otherwise adversely
change its relationship with the Company.
(d) RESTRICTED PERIOD. "RESTRICTED PERIOD" hereunder means the
period commencing on the last day of Executive's employment with the
Company and ending on the date that is two years following the last day
of the Term.
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(e) ACKNOWLEDGMENT. Executive hereby acknowledges that the
provisions of this Section 7 are reasonable and necessary to protect
the legitimate interests of the Company and that any violation of this
Section 7 by Executive shall cause substantial and irreparable harm to
the Company to such an extent that monetary damages alone would be an
inadequate remedy therefor. Therefore, in the event that Executive
violates any provision of this Section 7, the Company shall be entitled
to an injunction, in addition to all the other remedies it may have,
restraining Executive from violating or continuing to violate such
provision.
(f) BLUE PENCIL DOCTRINE. If the duration of, the scope of or
any business activity covered by any provision of this Section 7 is in
excess of what is determined to be valid and enforceable under
applicable law, such provision shall be construed to cover only that
duration, scope or activity that is determined to be valid and
enforceable. Executive hereby acknowledges that this Section 7 shall be
given the construction that renders its provisions valid and
enforceable to the maximum extent, not exceeding its express terms,
possible under applicable law.
(g) PERMITTED EQUITY OWNERSHIP. Ownership by Executive, as a
passive investment, of less than 2.5% of the outstanding shares of
capital stock of any corporation listed on a national securities
exchange or publicly traded in the over-the-counter market shall not
constitute a breach of this Section 7.
8. INTELLECTUAL PROPERTY.
(a) DISCLOSURE AND ASSIGNMENT. As of the Effective Date,
Executive hereby transfers and assigns to the Company (or its
designee) all right, title, and interest of Executive in and to
every idea, concept, invention, and improvement (whether patented,
patentable or not) conceived or reduced to practice by Executive
whether solely or in collaboration with others while he is employed
by the Company, and all copyrighted or copyrightable matter created
by Executive whether solely or in collaboration with others while he
is employed by the Company that relates to the Company's business
(collectively, "CREATIONS"). Executive shall communicate promptly
and disclose to the Company, in such form as the Company may
request, all information, details, and data pertaining to each
Creation. Every copyrightable Creation, regardless of whether
copyright protection is sought or preserved by the Company, shall be
a "work made for hire" as defined in 17 U.S.C. Section 101, and the
Company shall own all rights in and to such matter throughout the
world, without the payment of any royalty or other consideration to
Executive or anyone claiming through Executive.
(b) TRADEMARKS. All right, title, and interest in and to any
and all trademarks, trade names, service marks, and logos adopted,
used, or considered for use by the Company during Executive's
employment (whether or not developed by Executive) to identify the
Company's business or other goods or services (collectively, the
"MARKS"), together with the goodwill appurtenant thereto, and all other
materials, ideas, or other property conceived, created, developed,
adopted, or improved by Executive solely or jointly during Executive's
employment by the Company and relating
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to its business shall be owned exclusively by the Company. Executive
shall not have, and will not claim to have, any right, title, or
interest of any kind in or to the Marks or such other property.
(c) DOCUMENTATION. Executive shall execute and deliver to the
Company such formal transfers and assignments and such other documents
as the Company may request to permit the Company (or its designee) to
file and prosecute such registration applications and other documents
it deems useful to protect or enforce its rights hereunder. Any idea,
invention, copyrightable matter, or other property relating to the
Company's business and disclosed by Executive prior to the first
anniversary of the effective date of Executive's termination of
employment shall be deemed to be governed by the terms of this Section
8 unless proven by Executive to have been first conceived and made
after such termination date.
(d) NON-APPLICABILITY. Executive is hereby notified that this
Section 8 does not apply to any invention for which no equipment,
supplies, facility, Confidential Information, or other trade secret
information of the Company was used and which was developed entirely on
Executive's own time, unless (i) the invention relates (A) directly to
the business of the Company or (B) to the Company's actual or
demonstrably anticipated research or development, or (ii) the invention
results from any work performed by Executive for the Company.
9. TERMINATION OF EMPLOYMENT.
(a) Executive's employment with the Company shall terminate
immediately upon:
(i) Executive's receipt of written notice from
the Company of the termination of his
employment;
(ii) the Company's receipt of Executive's written
resignation from the Company;
(iii) Executive's Disability (as defined below);
or
(iv) Executive's death.
(b) The date upon which Executive's termination of employment
with the Company occurs shall be the "TERMINATION DATE."
10. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) If Executive's employment with the Company is terminated
by reason of:
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(i) Executive's abandonment of his employment or
Executive's resignation for any reason
(whether or not such resignation is set
forth in writing or otherwise communicated
to the Company);
(ii) termination of Executive's employment by the
Company for Cause (as defined below); or
(iii) termination of Executive's employment by the
Company without Cause following expiration
of the Term; or
the Company shall pay to Executive his then-current base salary through
the Termination Date.
(b) If Executive's employment with the Company is terminated
by the Company effective prior to the expiration of the Term for any
reason other than for Cause (as defined below), then the Company shall
pay to Executive, subject to Section 10(i) of this Agreement:
(i) his then-current base salary through the
Termination Date;
(ii) any earned and unpaid annual Incentive Bonus
for the fiscal quarter immediately preceding
the fiscal quarter in which the Termination
Date occurs; and
(iii) a crisp $100 xxxx from W. Xxxx Xxxxxx.
Any amount payable to Executive pursuant to Section 10(b)(ii) shall be
paid to Executive by the Company in the same manner and at the same
time that Incentive Bonus payments are made to current employees of the
Company, but no earlier than the first normal payroll date of the
Company following the expiration of all applicable rescission periods
provided by law.
(c) If Executive's employment with the Company is terminated
effective prior to the expiration of the Term by reason of Executive's
death or Disability, the Company shall pay to Executive or his
beneficiary or his estate, as the case may be, his then-current base
salary through the Termination Date, any earned and unpaid quarterly
Incentive Bonus for the fiscal quarter preceding the fiscal quarter in
which the Termination Date occurs and a pro-rated portion of any
quarterly Incentive Bonus for the fiscal quarter in which the
Termination Date occurs, based on the number of days during such fiscal
quarter that Executive was employed by the Company, payable in the same
manner and at the same time that Incentive Bonus payments are made to
current employees of the Company.
(d) Cause. "CAUSE" hereunder shall mean:
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(i) an act or acts of dishonesty undertaken by
Executive and intended to result in
substantial gain or personal enrichment of
Executive at the expense of the Company;
(ii) unlawful conduct or gross misconduct that is
willful and deliberate on Executive's part
and that, in either event, is materially
injurious to the Company;
(iii) the conviction of Executive of a felony;
(iv) material and deliberate failure of Executive
to perform his duties and responsibilities
hereunder or to satisfy his obligations as
an officer or employee of the Company, which
failure has not been cured by Executive
within ten days after written notice thereof
to Executive from the Company; or
(v) material breach of any terms and conditions
of this Agreement by Executive not caused by
the Company, which breach has not been cured
by Executive within ten days after written
notice thereof to Executive from the
Company.
(e) "DISABILITY" hereunder shall mean the inability of
Executive to perform on a full-time basis the duties and
responsibilities of his employment with the Company by reason of his
illness or other physical or mental impairment or condition, if such
inability continues for an uninterrupted period of 45 days or more
during any 360-day period. A period of inability shall be
"uninterrupted" unless and until Executive returns to full-time work
for a continuous period of at least 30 days.
(f) In the event of termination of Executive's employment, the
sole obligation of the Company hereunder shall be its obligation to
make the payments called for by Sections 10(a), 10(b), or 10(c) hereof,
as the case may be, and the Company shall have no other obligation to
Executive or to his beneficiary or his estate, except as otherwise
provided by law.
(g) Notwithstanding any other provision hereof, the Company
shall not be obligated to make any payments under Section 10(b)(ii) or
(iii) of this Agreement unless Executive has signed a full release of
claims against the Company, in a form and scope to be prescribed by the
Board, all applicable consideration periods and rescission periods
provided by law shall have expired, and Executive is in strict
compliance with the terms of this Agreement as of the dates of the
payments.
11. RETURN OF PROPERTY. Upon termination of Executive's
employment with the Company, Executive shall deliver promptly to the
Company all records, files, manuals, books, forms, documents, letters,
memoranda, data, customer lists, tables, photographs,
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video tapes, audio tapes, computer disks and other computer storage
media, and copies thereof, that are the property of the Company, or
that relate in any way to the business, products, services, personnel,
customers, prospective customers, suppliers, practices, or techniques
of the Company, and all other property of the Company (such as, for
example, computers, cellular telephones, pagers, credit cards, and
keys), whether or not containing Confidential Information, that are in
Executive's possession or under Executive's control.
12. REMEDIES. Executive acknowledges that it would be
difficult to fully compensate the Company for monetary damages
resulting from any breach by him of the provisions of Sections 6, 7,
and 8 hereof. Accordingly, in the event of any actual or threatened
breach of any such provisions, the Company shall, in addition to any
other remedies it may have, be entitled to injunctive and other
equitable relief to enforce such provisions, and such relief may be
granted without the necessity of proving actual monetary damages.
13. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by,
subject to, and construed in accordance with the laws of the
Commonwealth of
Kentucky without regard to conflict of law principles.
Any action relating to this Agreement shall only be brought in a court
of competent jurisdiction in the Commonwealth of
Kentucky, and the
parties consent to the jurisdiction, venue and convenience of such
courts.
(b) JURISDICTION AND LAW. Executive and the Company consent to
jurisdiction of the courts of the Commonwealth of
Kentucky and/or the
federal district courts, Western District of
Kentucky, for the purpose
of resolving all issues of law, equity, or fact, arising out of or in
connection with this Agreement. Any action involving claims of a breach
of this Agreement shall be brought in such courts. Each party consents
to personal jurisdiction over such party in the state and/or federal
courts of
Kentucky and hereby waives any defense of lack of personal
jurisdiction or FORUM NON CONVENIENS. Venue, for the purpose of all
such suits, shall be in Jefferson County, Commonwealth of
Kentucky.
(c) ENTIRE AGREEMENT. Except for any written stock option
agreement and related agreements between Executive and the Company,
this Agreement contains the entire agreement of the parties relating to
Executive's employment with the Company and supersedes all prior
agreements and understandings with respect to such subject matter
including without limitation the Prior
Employment Agreement, and the
parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement that are not set forth
herein. As of the Effective Date, the Prior
Employment Agreement shall
terminate and be of no further force or effect; provided, however, any
obligations of Executive or the Company arising under the Prior
Employment Agreement prior to the Effective Date shall survive such
termination.
(d) NO VIOLATION OF OTHER AGREEMENTS. Executive hereby
represents and agrees that neither (i) Executive's entering into this
Agreement, (ii) Executive's
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employment with the Company, nor (iii) Executive's carrying out the
provisions of this Agreement, will violate any other agreement (oral,
written or other) to which Executive is a party or by which Executive
is bound.
(e) AMENDMENTS. No amendment or modification of this Agreement
shall be deemed effective unless made in writing and signed by the
parties hereto.
(f) NO WAIVER. No term or condition of this Agreement shall be
deemed to have been waived, except by a statement in writing signed by
the party against whom enforcement of the waiver is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically
stated, shall operate only as to the specific term or condition waived
and shall not constitute a waiver of such term or condition for the
future or as to any act other than that specifically waived.
(g) ASSIGNMENT. This Agreement shall not be assignable, in
whole or in part, by either party without the prior written consent of
the other party, except that the Company may, without the consent of
Executive, assign its rights and obligations under this Agreement (i)
to any entity with which the Company may merge or consolidate, or (ii)
to any corporation or other person or business entity to which the
Company may sell or transfer all or substantially all of its assets.
Upon Executive's written request, the Company will seek to have any
Successor by agreement assent to the fulfillment by the Company of its
obligations under this Agreement. After any assignment by the Company
pursuant to this Section 13(g), the Company shall be discharged from
all further liability hereunder and such assignee shall thereafter be
deemed to be the "Company" for purposes of all terms and conditions of
this Agreement, including this Section 13.
(h) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and such counterparts executed and delivered, each as
an original, shall constitute but one and the same instrument.
(i) SEVERABILITY. Subject to Section 7(f) hereof, to the
extent that any portion of any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect.
(j) SURVIVAL. The terms and conditions set forth in Sections
5, 6, 7, 8, 9, 11, 12, and 13 of this Agreement, and any other
provision that continues by its terms, shall survive expiration of the
Term or termination of Executive's employment for any reason.
(k) CAPTIONS AND HEADINGS. The captions and paragraph headings
used in this Agreement are for convenience of reference only and shall
not affect the construction or interpretation of this Agreement or any
of the provisions hereof.
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(l) NOTICES. Any notice required or permitted to be given
under this Agreement shall be sufficient if in writing and either
delivered in person or sent by first class certified or registered
mail, postage prepaid, if to the Company, at the Company's principal
place of business, and if to Executive, at his home address most
recently filed with the Company, or to such other address or addresses
as either party shall have designated in writing to the other party
hereto.
* * * * *
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IN WITNESS WHEREOF, Executive and the Company have executed this
Agreement as of the date set forth in the first paragraph.
TEXAS ROADHOUSE, INC.
By: /S/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx, Chief Executive Officer
XXXXXX X. XXXXX
/S/ XXXXXX X. XXXXX
---------------------------------------------
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