CARRABBA'S ITALIAN GRILL, INC. Officer Employment Agreement
Exhibit
10.1
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X. Xxxxxxx
Officer
Employment Agreement
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into effective
April
27,
2000,
by and
among XXXXXX
X.
XXXXXXX (hereinafter
referred to as “Employee”),
and CARRABBA'S
ITALIAN GRILL, INC.,
a
Florida corporation
having
its principal office at 0000 X. Xxxx Xxxxx Xxxxxxxxx, 0xx
Xxxxx,
Xxxxx, Xxxxxxx 00000 (hereinafter
referred to as the
“Employer”).
W
I T N E
S S E T H:
This
Agreement is made and entered into under the following
circumstances:
A. WHEREAS,
the Employer is an affiliate of OSI Restaurant Partners, Inc. (“OSI”);
and
B. WHEREAS,
the Employer is engaged in the business of owning and operating restaurants
known as “Carrabba's
Italian Grill®”
utilizing a restaurant operating system and trademarks owned by or licensed
to
the Employer; and
C. WHEREAS,
the Employer desires, on the terms and conditions stated herein, to employ
Employee as President
of the
Employer; and
D. WHEREAS,
the Employee desires, on the terms and conditions stated herein, to be employed
by the Employer as President.
NOW,
THEREFORE, in consideration of the foregoing recitals, and of the premises,
covenants, terms and conditions contained herein, the parties hereto agree
as
follows:
1. Employment
and Term.
Subject
to earlier termination as provided for in Section
8
hereof,
the Employer hereby employs the Employee, and the Employee hereby accepts
employment with the Employer as President
of the
Employer for a term commencing on April
27,
2000
and
expiring April
27,
2007
(“Term
of Employment”).
Such
Term of Employment shall be automatically renewed for successive renewal
terms
of one (1) year each unless either party elects not to renew by giving written
notice to the other party not less than sixty (60) days prior to the start
of
any renewal term.
2. Representations
and Warranties.
The
Employee hereby represents and warrants to the Employer that the Employee
(i) is
not subject to any written nonsolicitation
or noncompetition agreement affecting the Employee’s employment with the
Employer (other than any prior agreement with the Employer, OSI or either
of
their affiliates), (ii) is not subject to any written confidentiality or
nonuse/nondisclosure agreement affecting the Employee’s employment with the
Employer (other than any prior agreement with the Employer, OSI or either
of
their affiliates), and (iii) has brought to the Employer no trade secrets,
confidential business information, documents, or other personal property
of a
prior employer.
3. Duties.
As
President
of the
Employer, the Employee shall:
(a) have
such
management, supervisory and operational functions as are customary to such
position, and such other powers, functions and duties may be assigned to
the
Employee by the Board of Directors of the Employer or the Chief Executive
Officer or Chief Operating Officer of the Employer; and
(b) diligently,
competently, and faithfully perform all of the duties and functions hereunder;
and
(c) not
create a situation that results in termination for Cause (as that term is
defined in Section
8
hereof);
and
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(d) devote
one hundred percent (100%) of the Employee’s full business time, attention,
energies and effort to the business affairs of the Employer; and
(e) conduct
all of his activities in a manner so as to maintain and promote the business
and
reputation of the Employer.
The
Employee shall not, during the term of this Agreement, engage in any other
business activity; provided,
however,
that the
Employee shall be permitted to invest the Employee’s personal assets and manage
the Employee’s personal investment portfolio in such a form and manner as will
not require any business services on Employee’s part to any third party
or
conflict with the provisions of Section
9,
Section
10 or
Section 14
hereof,
or conflict with any published policy of the Employer or its affiliates,
including but not limited to the xxxxxxx xxxxxxx policy of the Employer or
its
affiliates.
The
Employee shall be responsible for directly reporting to the Chief Executive
Officer or Chief Operating Officer of the Employer on all matters for which
the
Employee is responsible.
Notwithstanding
anything to the contrary herein, the parties acknowledge and agree that the
Employee shall, during the term of this Agreement and at the request of the
Employer, also serve as an officer of any subsidiary or affiliate of the
Employer or OSI, as the Employer shall request. In such capacity, Employee
shall
be responsible generally for all aspects of such office. All terms, conditions,
rights and obligations of this Agreement shall be applicable to Employee
while
serving in such office as though Employee and such subsidiary or affiliate
of
the Employer or OSI had separately entered into this Agreement, except that
the
Employee shall not be entitled to any compensation, vacation, fringe benefits,
automobile allowance or other remuneration of any kind whatsoever from such
subsidiary or affiliate of the Employer or OSI.
4. Compensation.
During
the Term of Employment, the Employee shall be entitled to an annual base
salary
equal to at least the annual salary of Employee on the effective date hereof,
payable in equal biweekly installments by the Employer, to be reviewed annually
by the Employer.
5. Vacation.
Employee
shall be entitled to three
(3)
weeks
paid vacation (selected by Employee, but subject to the reasonable business
requirements of the Employer as determined by the Chief Executive Officer
of the
Employer) during each full year during the Term of Employment. Vacation
granted but not used in any year shall be forfeited at the end of such one-year
period and may not be carried over to any subsequent year.
6. Fringe
Benefits.
In
addition to any other rights the Employee may have hereunder, the Employee
shall
also be entitled to receive those fringe benefits, including, but not limited
to, complimentary food, life insurance, medical benefits, etc.,
if any,
as may be provided by the Employer to similar employees of the Employer.
7. Automobile
Allowance; Expenses.
(a) During
the Term of Employment, the Employer shall pay to Employee a monthly automobile
allowance in the amount of FOUR
HUNDRED AND 00/100
DOLLARS
($400.00).
Such
automobile allowance shall be in lieu of reimbursement by the Employer of
the
costs to Employee of purchasing and maintaining an automobile, and all
operational expenses, including, without limitation, mileage, repairs,
insurance, etc., in connection therewith; provided, however, that the Employer
shall reimburse Employee for the cost of gasoline used in conducting the
Employer’s business. Employee shall, at all times during the Term of Employment,
maintain an automobile for use in connection with the performance of Employee’s
duties and shall maintain in full force and effect, at all times, with the
Employer as additional loss payees, at least
TWO
HUNDRED FIFTY THOUSAND AND 00/100
DOLLARS
($250,000.00)
in
property damage and FIVE
HUNDRED THOUSAND AND 00/100
DOLLARS
($500,000.00)
in
personal liability automobile insurance, with an additional ONE
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MILLION
DOLLARS
($1,000,000.00)
personal liability umbrella.
Such
insurance shall be written with an insurance carrier reasonably acceptable
to
the Employer and shall provide that such insurance cannot be changed, cancelled
or permitted to expire without at least ten (10) days prior written notice
to
the Employer.
(b) Subject
to approval by the Chief Financial Officer of the Employer and compliance
with
the Employer’s policies, the Employee may incur reasonable expenses on behalf of
and in furtherance of the business of the Employer. Upon approval of such
expenses by the Chief Financial Officer, the Employer shall promptly reimburse
the Employee for all such expenses upon presentation by the Employee, from
time
to time, of appropriate receipts or vouchers for such expenses that are
sufficient in form and substance to satisfy all federal tax requirements
for the
deductibility of such expenses by the Employer.
8. Termination.
Notwithstanding
the provisions of Section
1
hereof,
the Term of Employment shall terminate prior to the end of the period of
time
specified in Section
1,
immediately upon:
(a) The
death
of the Employee; or
(b) The
Employee’s Disability during the Term of Employment. For purposes of this
Agreement, the term “Disability” shall mean the inability of the Employee,
arising out of any medically determinable physical or mental impairment,
to
perform the services required of the Employee hereunder for a period of ninety
(90) consecutive days; or
(c) The
existence of Cause. For purposes of this Agreement, the term “Cause” shall be
defined as:
(i) Any
dishonesty by the Employee in the Employee’s dealings with the Employer, the
commission of fraud by the Employee, negligence in the performance of the
duties
of the Employee, insubordination, willful misconduct, or the conviction (or
plea
of guilty or nolo contendere) of the Employee of any felony, or any other
crime
involving dishonesty or moral turpitude; or
(ii) Any
violation of any covenant or restriction contained in Section
9, Section 10, Section 12 or
Section 14
hereof;
or
(iii) Any
violation of any material published policy of the Employer or its affiliates
(material published policies include, but are not limited to, the Employer’s
discrimination and harassment policy, management duty policy, responsible
alcohol policy and xxxxxxx xxxxxxx policy);
or
(d) At
the
election of the Employer, upon the sale of a majority ownership interest
in the
Employer or substantially all of the assets of the Employer; or
(e) At
the
election of the Employer, upon the determination by the Employer to cease
the
Employer’s business operations; or
(f) At
the
election of the Employer in its sole discretion, for any reason or no reason.
In
the event of termination of this Agreement pursuant to this Section
8(f),
the
Employee shall be entitled to receive as full and complete severance
compensation, the base salary provided for herein for a period of
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one
(1)
year from the effective date of such termination (the “Severance”). Severance
shall be payable in bi-weekly installments. The Employee acknowledges and
agrees
that in the event of termination of this Agreement pursuant to this Section
8(f) the
Severance provided in this Section
8(f)
shall be
the only obligation that the Employer, OSI or any of their affiliates shall
have
to the Employee. Employee acknowledges that in the event of termination of
Employee’s employment as President of the Employer, whether pursuant to this
Section
8(f)
or
otherwise, any Long Term Incentive Agreement (“LTIA”) with the Employer or any
of its affiliates shall terminate immediately and the Employee shall not
be
entitled to any further payments under such LTIA.
For
all
purposes of this Agreement, termination for Cause shall be deemed to have
occurred in the event of the Employee’s resignation when, because of existing
facts and circumstances, subsequent termination for Cause can be reasonably
foreseen.
Except
as
otherwise provided in Section
8(f),
in the
event of termination of this Agreement pursuant to this Section
8,
the
Employee or the Employee’s estate, as appropriate, shall be entitled to receive
(in addition to any fringe benefits payable upon death in the case of the
Employee’s death) the base salary provided for herein up to and including the
effective date of termination, prorated on a daily basis.
The
Employee acknowledges and agrees that in the event of termination of Employee’s
employment as President of the Employer, with or without Cause, any LTIA
between
the Employee and the Employer or any of its affiliates shall terminate
immediately and the Employee shall not be entitled to any further payments
under
such LTIA.
9. Noncompetition.
(a) During
Term.
During
the Employee’s employment with the Employer, the Employee shall not,
individually or jointly with others, directly or indirectly, whether for
the
Employee’s own account or for that of any other person or entity, engage in or
own or hold any ownership interest in any person or entity engaged in a
restaurant business, and the Employee shall not act as an officer, director,
employee, partner, independent contractor, consultant, principal, agent,
proprietor, or in any other capacity for, nor lend any assistance (financial
or
otherwise) or cooperation to any such person or entity.
(b) Post
Term.
For a
continuous period of two (2) years commencing on termination of the Employee’s
employment with the Employer, regardless of any termination pursuant to
Section
8
or any
voluntary termination or resignation by the Employee, the Employee shall
not,
individually or jointly with others, directly or indirectly, whether for
the
Employee’s own account or for that of any other person or entity, engage in or
own or hold any ownership interest in, have any interest in or lend any
assistance to, any Italian restaurant or any person or entity engaged in
a
business owning, operating, franchising or controlling an Italian restaurant
business, and that is located or intended to be located anywhere within a
radius
of thirty (30) miles of any Carrabba’s® restaurant owned or operated by the
Employer, the Company or their affiliates or any proposed Carrabba’s® restaurant
to be owned or operated by any of the foregoing, and the Employee shall not
act
as an officer, director, employee, partner, independent contractor, consultant,
principal, agent, proprietor, chef, or in any other capacity for, nor lend
any
assistance (financial or otherwise) or cooperation to, any such person, or
entity. For purposes of this Section
9(b),
Carrabba’s® restaurants owned or operated by the Company shall include
Carrabba’s® restaurants operated or owned by an affiliate of the Company, any
successor entity to the Company, and any entity in which the Company has
an
interest, including but not limited to, an interest as a franchisor. The
term
“proposed Carrabba’s® restaurant” shall include all locations for which the
Company, its franchisees or affiliates is conducting active, bona fide
negotiations to secure a fee or leasehold interest with the intention of
establishing one or more Carrabba’s® restaurants thereon. For purposes of
this
Section 9(b),
the
term “Italian” shall mean any restaurant for which: (i) the word “Italian” or
any item of
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Italian
cuisine or any word that connotes Italian cuisine is used in its name; or
(ii)
the sale of Italian cuisine is regularly featured in its advertising or
marketing efforts, or (iii) the sale of Italian cuisine constitutes thirty
percent (30%) or more of its entrée sales, computed on a dollar
basis.
(c) Limitation.
Notwithstanding subsections
(a)
and
(b),
it
shall not be a violation of this Section
9
for
Employee to own a one percent (1%) or smaller interest in any corporation
required to file periodic reports with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended, or successor
statute.
10. Nondisclosure;
Nonsolicitation; Nonpiracy.
Except
in
the performance of Employee’s duties hereunder, at no time during the Term of
Employment, or at any time thereafter, shall Employee, individually or jointly
with others, for the benefit of Employee or any third party, publish, disclose,
use, or authorize anyone else to publish, disclose, or use, any secret or
confidential material or information relating to any aspect of the business
or
operations of the Employer, OSI or their affiliates, including, without
limitation, any secret or confidential information relating to the business,
customers, trade or industrial practices, trade secrets, technology, recipes
or
know-how of any of the Employer, OSI or their affiliates. Moreover, during
the
Employee’s employment with the Employer and for two (2) years thereafter,
Employee shall not offer employment to any employee of the Employer, OSI,
their
franchisees or affiliates, or otherwise solicit or induce any employee of
the
Employer, OSI, their franchisees or affiliates to terminate their employment,
nor shall Employee act as an officer, director, employee, partner, independent
contractor, consultant, principal, agent, proprietor, owner or part owner,
or in
any other capacity, for any person or entity that solicits or otherwise induces
any employee of the Employer, OSI, their franchisees or affiliates to terminate
their employment.
11. Employer
Property: Employee Duty to Return.
All
Employer products, recipes, product specifications, training materials, employee
selection and testing materials, marketing and advertising materials, special
event, charitable and community activity materials, customer correspondence,
internal memoranda, products and designs, sales information, project files,
price lists, customer and vendor lists, prospectus reports, customer or vendor
information, sales literature, territory printouts, call books, notebooks,
textbooks, and all other like information or products, including all copies,
duplications, replications, and derivatives of such information or products,
now
in the possession of Employee or acquired by Employee while in the employ
of the
Employer, shall be the exclusive property of the Employer and shall be returned
to the Employer no later than the date of Employee’s last day of work with the
Employer.
12. Inventions,
Ideas, Processes, and Designs.
All
inventions, ideas, recipes, processes, programs, software, and designs
(including all improvements) (i) conceived or made by Employee during the
course
of Employee’s employment with the Employer (whether or not actually conceived
during regular business hours) and for a period of six (6) months subsequent
to
the termination or expiration of such employment and (ii) related to the
business of the Employer, shall be disclosed in writing promptly to the Employer
and shall be the sole and exclusive property of the Employer. An invention,
idea, recipe, process, program, software or design (including an improvement)
shall be deemed “related to the business of the Employer” if (a) it was made
with equipment, supplies, facilities, or confidential information of the
Employer, (b) results from work performed by Employee for the Employer, or
(c)
pertains to the current business or demonstrably anticipated research or
development work of the Employer. Employee shall cooperate with the Employer
and
their attorneys in the preparation of patent and copyright applications for
such
developments and, upon request, shall promptly assign all such inventions,
ideas, recipes, processes, and designs to the Employer. The decision to file
for
patent or copyright protection or to maintain such development as a trade
secret
shall be in the sole discretion of the Employer, and Employee shall be bound
by
such decision. Employee shall provide, on the back of this Employment Agreement,
a complete list of all inventions, ideas, recipes, processes, and designs
if
any, patented or unpatented, copyrighted or non-copyrighted, including a
brief
description, that the Employee made or conceived prior to Employee’s employment
with the Employer and that therefore are excluded from the scope of this
Agreement.
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13. Employer’s
Promise to Give Employee Trade Secrets and Training.
In
return for Employee’s agreement not to use or disclose Employer’s trade secrets,
training, systems and confidential proprietary business methods, Employer
unconditionally promises to give Employee within ninety (90) days of the
signing
of this contract trade secrets, specialized training and other confidential
proprietary business methods.
Specifically,
Employer unconditionally promises to give Employee one-on-one training from
executives, trainers and senior employees of Employer or its affiliates.
Further, the training will include training and information concerning
procedures and confidential proprietary methods Employer uses to obtain and
retain business from their customer base, operations in Employer’s home office,
marketing and sales techniques, and information regarding the confidential
information listed in Section
12(b)
of this
Agreement. Further, after the ninety (90) days, as Employer develops (during
Employee’s employment with Employer) additional trade secrets, employee surveys
and analyses, financial data and other confidential proprietary business
methods
and overall marketing plans and strategies, Employer promises to continue
to
provide, on a periodic basis, said confidential information and additional
training and analysis from their executives, trainers and/or senior employees
to
Employee for so long as Employee is employed by Employer as President.
14. Employee’s
Promise Not to Disclose Trade Secrets and Confidential
Information.
Employee
understands and agrees that Employer will provide unique and specialized
training and confidential information concerning Employer’s business operations,
including, but not limited to, recipes, product specifications, restaurant
operating techniques and procedures, marketing techniques and procedures,
financial data, processes, vendors and other information that was developed
and
maintained at considerable effort and expense to Employer, for the Employer’s
sole and exclusive use, and which if used by the Employer’s competitors would
give them an unfair business advantage. Employee believes the unconditional
promise to provide said information is sufficient consideration for Employee’s
promise to adhere to the restrictive covenants of Section
9, Section 10,
Section
12
and
Section
14
of this
Agreement.
15. Restrictive
Covenants: Consideration; Non-Estoppel; Independent Agreements; and
Non-Executory Agreements.
The
restrictive covenants of
Section 9, Section 10, Section 12 and
Section 14 of
this
Agreement are given and made by Employee to induce the Employer to employ
the
Employee and to enter into this Agreement with the Employee, and Employee
hereby
acknowledges that employment with the Employer is sufficient consideration
for
these restrictive covenants.
The
restrictive covenants of Section
9, Section 10, Section 12 and
Section 14 of
this
Agreement shall be construed as agreements independent of any other provision
in
this Agreement, and the existence of any claim or cause of action of Employee
against the Employer, whether predicated upon this Agreement or otherwise,
shall
not constitute a defense to the enforcement of any restrictive covenant.
The
Employer have fully performed all obligations entitling them to the restrictive
covenants of Section
9, Section 10, Section 12 and
Section 14 of
this
Agreement, and those restrictive covenants therefore are not executory or
otherwise subject to rejection under the Bankruptcy Code.
The
refusal or failure of the Employer to enforce any restrictive covenant of
Section
9, Section 10, Section 12 or
Section 14 of
this
Agreement (or any similar agreement) against any other employee, agent, or
independent contractor, for any reason, shall not constitute a defense to
the
enforcement by the Employer of any such restrictive covenant, nor shall it
give
rise to any claim or cause of action by Employee against the
Employer.
16. Reasonableness
of Restrictions; Reformation; Enforcement.
The
parties hereto recognize and acknowledge that the geographical and time
limitations contained in Section
9, Section 10, Section 12 and
Section 14
hereof
are reasonable and properly required for the adequate protection of the
Employer’s interests. Employee acknowledges that the Employer is the owner or
the licensee of the Carrabba's
Italian Grill®
trademarks, and the owner or the licensee of the Carrabba's
Italian Grill®
restaurant operating system and will provide to Employee training in and
confidential information concerning the Carrabba's
Italian Grill®
restaurant
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operating
system in reliance on the covenants contained in Section
9, Section 10, Section 12 and
Section 14
hereof.
It is agreed by the parties hereto that if any portion of the restrictions
contained in Section
9, Section 10, Section 12 or
Section 14
are held
to be unreasonable, arbitrary, or against public policy, then the restrictions
shall be considered divisible, both as to the time and to the geographical
area,
with each month of the specified period being deemed a separate period of
time
and each radius mile of the restricted territory being deemed a separate
geographical area, so that the lesser period of time or geographical area
shall
remain effective so long as the same is not unreasonable, arbitrary, or against
public policy. The parties hereto agree that in the event any court of competent
jurisdiction determines the specified period or the specified geographical
area
of the restricted territory to be unreasonable, arbitrary, or against public
policy, a lesser time period or geographical area that is determined to be
reasonable, nonarbitrary, and not against public policy may be enforced against
Employee. If Employee shall violate any of the covenants contained herein
and if
any court action is instituted by the Employer to prevent or enjoin such
violation, then the period of time during which the Employee’s business
activities shall be restricted, as provided in this Agreement, shall be
lengthened by a period of time equal to the period between the date of the
Employee’s breach of the terms or covenants contained in this Agreement and the
date on which the decree of the court disposing of the issues upon the merits
shall become final and not subject to further appeal.
In
the
event it is necessary for the Employer to initiate legal proceedings to enforce,
interpret or construe any of the covenants contained in Section
9, Section 10, Section 12 or
Section 14
hereof,
the prevailing party in such proceedings shall be entitled to receive from
the
non-prevailing party, in addition to all other remedies, all costs, including
reasonable attorneys’ fees, of such proceedings including appellate
proceedings.
17. Specific
Performance.
Employee
agrees that a breach of any of the covenants contained in Section
9, Section 10, Section 12 or
Section 14 hereof
will cause irreparable injury to the Employer for which the remedy at law
will
be inadequate and would be difficult to ascertain and therefore, in the event
of
the breach or threatened breach of any such covenants, the Employer shall
be
entitled, in addition to any other rights and remedies they may have at law
or
in equity, to obtain an injunction to restrain Employee from any threatened
or
actual activities in violation of any such covenants. Employee hereby consents
and agrees that temporary and permanent injunctive relief may be granted
in any
proceedings that might be brought to enforce any such covenants without the
necessity of proof of actual damages, and in the event the Employer does
apply
for such an injunction, Employee shall not raise as a defense thereto that
the
Employer has an adequate remedy at law.
18. Assignability.
This
Agreement and the rights and duties created hereunder, shall not be assignable
or delegable by Employee. The Employer shall have the right, without Employee’s
knowledge or consent, to assign this Agreement, in whole or in part and any
or
all of the rights and duties hereunder, including but not limited to the
restrictive covenants of Section
9, Section 10, Section 11, Section 12 and
Section
14
hereof
to any person, including but not limited to any affiliate of the Employer,
or
any successor to the Employer’s interest in the Carrabba's
Italian Grill®
restaurants, and Employee shall be bound by such assignment. Any assignee
or
successor may enforce any restrictive covenant of this Agreement.
19. Effect
of Termination.
The
termination of this Agreement, for whatever reason or no reason, or the
expiration of this Agreement shall not extinguish those obligations of Employee
specified in Section
9,
Section
10,
Section
11, Section 12
and
Section
14
hereof.
The restrictive covenants of Section
9, Section 10, Section 11, Section 12 and
Section 14 shall
survive the termination or expiration of this Agreement. The termination
or
expiration of this Agreement shall extinguish the right of any party to bring
an
action, either in law or in equity, for breach of this Agreement by any other
party.
20. Captions;
Terms.
The
captions of this Agreement are for convenience only, and shall not be construed
to limit, define, or modify the substantive terms hereof.
21. Acknowledgments.
Employee hereby acknowledges that the Employee has been provided with a copy
of
this Agreement for review prior to signing it, that the Employee has been
given
the opportunity to have this
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Agreement
reviewed by Employee’s attorney prior to signing it, that the Employee
understands the purposes and effects of this Agreement, and that the Employee
has been given a signed copy of this Agreement for Employee’s own
records.
22. Notices.
All
notices or other communications provided for herein to be given or sent to
a
party by the other party shall be deemed validly given or sent if in writing
and
mailed, postage prepaid, by certified United States mail, return receipt
requested, addressed to the parties at their addresses hereinabove set forth
or
at their last known address. Any party may give notice to the other party
at any
time, by the method specified above, of a change in the address at which,
or the
person to whom, notice is to be addressed.
23. Severability.
Each
section, subsection, and lesser Section of this Agreement constitutes a separate
and distinct undertaking, covenant, or provision hereof. In the event that
any
provision of this Agreement shall be determined to be invalid or unenforceable,
such provision shall be deemed limited by construction in scope and effect
to
the minimum extent necessary to render the same valid and enforceable, and,
in
the event such a limiting construction is impossible, such invalid or
unenforceable provision shall be deemed severed from this Agreement, but
every
other provision of this Agreement shall remain in full force and
effect.
24. Waiver.
The
failure of a party to enforce any term, provision, or condition of this
Agreement at any time or times shall not be deemed a waiver of that term,
provision, or condition for the future, nor shall any specific waiver of
a term,
provision, or condition at one time be deemed a waiver of such term, provision,
or condition for any future time or times.
25. Parties.
This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their legal representatives, and proper successors or assigns,
as the
case may be.
26. Governing
Law.
The
validity, interpretation, and performance of this Agreement shall be governed
by
the laws of the State of Florida without giving effect to the principles
of
comity or conflicts of laws thereof.
27. Consent
to Personal Jurisdiction and Venue.
Employee
hereby consents to personal jurisdiction and venue, for any action brought
by
the Employer arising out of a breach or threatened breach of this Agreement
or
out of the relationship established by this Agreement, exclusively in the
United
States District Court for the Middle District of Florida, Tampa Division,
or in
the Circuit Court in and for Hillsborough County, Florida; Employee hereby
agrees that any action brought by Employee, alone or in combination with
others,
against the Employer, whether arising out of this Agreement or otherwise,
shall
be brought exclusively in the United States District Court for the Middle
District of Florida, Tampa Division, or in the Circuit Court in and for
Hillsborough County, Florida.
28. Affiliate.
Whenever
used in this Agreement, the term “affiliate” shall mean, with respect to any
entity, all persons or entities (i) controlled by the entity, (ii) that control
the entity, or (iii) that are under common control with the entity.
29. Cooperation.
Employee shall cooperate fully with all reasonable requests for information
and
participation by the Employer, its agents, or its attorneys, in prosecuting
or
defending claims, suits, and disputes brought on behalf of or against one
or
both of them and in which Employee is involved or about which Employee has
knowledge.
30. Amendments.
No
change, modification, or termination of any of the terms, provisions, or
conditions of this Agreement shall be effective unless made in writing and
signed or initialed by all signatories to this Agreement.
Carrabba's
Italian Grill, Inc.
President
EA with renewal and allowance 2006a
8
Xxxxxx
X. Xxxxxxx
31. WAIVER
OF JURY TRIAL.
ALL
PARTIES TO THIS AGREEMENT KNOW AND UNDERSTAND THAT THEY HAVE A CONSTITUTIONAL
RIGHT TO A JURY TRIAL. THE PARTIES ACKNOWLEDGE THAT ANY DISPUTE OR CONTROVERSY
THAT MAY ARISE OUT OF THIS AGREEMENT WILL INVOLVE COMPLICATED AND DIFFICULT
FACTUAL AND LEGAL ISSUES.
THE
PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING
OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT
OR
OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH
WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR
AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY
PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
THE
PARTIES INTEND THIS WAIVER OF THE RIGHT TO A JURY TRIAL BE AS BROAD AS POSSIBLE.
BY THEIR SIGNATURES BELOW, THE PARTIES PROMISE, WARRANT AND REPRESENT THAT
THEY
WILL NOT PLEAD FOR, REQUEST OR OTHERWISE SEEK TO HAVE A JURY TO RESOLVE ANY
AND
ALL DISPUTES THAT MAY ARISE BY, BETWEEN OR AMONG THEM.
32. Entire
Agreement; Counterparts.
This
Agreement and the agreements referred to herein constitute the entire agreement
between the parties hereto concerning the subject matter hereof, and supersede
any prior employment agreement with the Employer, OSI or any of their affiliates
and supersedes all prior memoranda, correspondence, conversations, negotiations
and other agreements. This Agreement may be executed in several identical
counterparts that together shall constitute but one and the same
Agreement.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
“EMPLOYEE”
________________________________________
_/s/
Xxxxxx X. Shlemon__________________
Witness XXXXXX
X.
XXXXXXX
________________________________________
Witness
“EMPLOYER”
|
Attest:
|
CARRABBA'S
ITALIAN GRILL,
INC.,
Florida
corporation
|
By:
_/s/ Xxxxxx X. Kadow_____________________ By:
_/s/ A. Xxxxxxx Xxxxx, III______________
|
XXXXXX
X. XXXXX, Secretary
|
A.
XXXXXXX XXXXX,
III,
Chief
Executive Officer
|
Carrabba's
Italian Grill, Inc.
President
EA with renewal and allowance 2006a
9
