EXHIBIT 10.2
EMPLOYMENT AGREEMENT
dated as of August 31, 2005 between
AFC Enterprises, Inc. (the "Company") and
Xxxxx X. Xxxxxxx ("Employee")
This Agreement (this "Agreement") is made and entered into as of August
31, 2005 by and between AFC Enterprises, Inc., a Minnesota corporation (the
"Company"), and Xxxxx X. Xxxxxxx ("Employee") (the Company and Employee
hereinafter referred to together as the "Parties").
WHEREAS, the Parties have entered into that certain Employment
Agreement, dated as of December 8, 2000 (the "Employment Agreement") and
Employee is serving as Chairman of the Board of Directors and Chief Executive
Officer of the Company pursuant to the terms of the Employment Agreement;
WHEREAS, the Parties have agreed that Employee will resign from his
position as Chief Executive Officer and that the Employment Agreement shall
terminate as of August 31, 2005;
WHEREAS, the Company desires to provide Employee with the benefits
payable to Employee as severance pursuant to the terms of the Employment
Agreement;
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
to retain Employee as Chairman of the Board and to compensate Employee for his
services pursuant to the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the Parties have agreed that Employee will continue his
services to the Company by serving as Chairman of the Board for a stated period
beginning on August 31, 2005; and
WHEREAS, the purpose of this Agreement is to confirm the agreed upon
terms, conditions and arrangements concerning Employee's resignation from
employment with the Company as Chief Executive Officer and the terms, conditions
and arrangements concerning Employee's employment as Chairman of the Board.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and agreements contained herein, the sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Employment Agreement.
2. Resignation. Employee agrees to resign from his position as
Chief Executive Officer of the Company and the Company agrees to accept
Employee's
resignation from his position as Chief Executive Officer, effective as of August
31, 2005 (the "Effective Date"). As of the Effective Date, the Employment
Agreement shall terminate and Employee shall accrue no further compensation or
rights under the Employment Agreement.
3. Severance Payments. On the Effective Date or as soon as
practicable thereafter the Company shall pay Employee a lump sum, in cash, in an
amount, including certain payments that Employee would have been entitled to
receive under the Employment Agreement upon a termination without cause, as
follows:
(a) a payment equal to (A) a prorated portion of
Employee's Base Salary at the time of termination based on the
proportion that the number of days from January 1 in the year of such
termination through and including August 31, 2005 bears to the total
number of days in the year of termination less any amount of Employee's
Base Salary for the 2005 fiscal year that that has been previously paid
to Employee and (B) a payment equal to one (1) year of the target
incentive pay of Employee ("Target Incentive Pay") as approved by the
Board of Directors of the Company as part of the Company's 2005 annual
incentive plan for senior executives of the Company (the "Annual
Incentive Plan"), to the extent earned and payable, according to the
metrics established by the People Services (Compensation) Committee of
the Board, to be paid at the time of payment of Target Incentive Pay
for other senior executives; and
(b) a payment equal to (A) two (2) times Employee's Base
Salary at the time of termination plus (B) two (2) times Employee's
Target Incentive Pay for the 2005 fiscal year as severance payments;
and
(c) a payment equal to the amounts payable to Employee as
a complete discharge set forth in Section 6.02 and Section 6.03 of the
Employment Agreement which are not being continued hereunder based upon
the current one (1) year cost of such benefits to the Company.
Notwithstanding anything to the contrary in the Employment Agreement,
the termination of the Employment Agreement and the execution of this Agreement
shall not cause the acceleration of Employee's stock options pursuant to Section
8.03(c) of the Employment Agreement.
4. Term of Agreement.
4.01. Initial Term. This Agreement shall be effective as of
the Effective Date and, unless earlier terminated pursuant to Section 10 hereof,
shall be for one initial term of one (1) year (the "Initial Term") concluding on
August 31, 2006 (the "Renewal Date").
4.02. Initial Renewal. The Term of this Agreement and
Employee's employment hereunder will automatically be extended for an additional
period
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terminating on the date of the Company's Annual Meeting of Shareholders (the
"Annual Meeting") during the fiscal year ending in 2007 without further action
by Employee or the Company unless (i) earlier terminated pursuant to Section 10
hereof or (ii) Employee gives to the other written notice not to renew not less
than thirty (30) days prior to the Renewal Date. The Initial Term and any term
pursuant to a renewal under this Section 4.02 are referred to herein as the
"Term."
5. Employment. Employee shall serve as Chairman of the Board of
Directors of the Company and shall perform such duties consistent with his
position as may be assigned to him from time to time by the Board of Directors
of the Company.
6. Base Salary. During the Term, the Company shall pay Employee,
in equal installments no less frequently than monthly, a base salary at the rate
of no less than One Hundred Fifty Thousand Dollars ($150,000.00 U.S.) per annum
(the "Base Salary"). The Employee's Base Salary shall be reviewed by the Board
of Directors of the Company on an annual basis. For purposes of clarity, it is
understood that the amount described in this Section 6 shall be in lieu of and
not in addition to annual awards of cash received by other members of the Board,
payable in accordance with the Company's compensation plan for non-executive
members of the Board, as such Plan may be amended from time to time (the
"Director's Compensation Plan").
7. Stock Options.
7.01. The Company has heretofore granted to Employee
certain nonqualified stock options to purchase shares of the Company's common
stock. During the Term, Employee shall be entitled to receive annual awards of
stock options to purchase shares of the Company's common stock in the same
amount received by other members of the Board, payable at such times and in
accordance with the Director's Compensation Plan.
7.02. Shareholders' Agreement. The Employee has agreed to
be bound by the terms of any shareholders' agreements which may be applicable
(the "Shareholders' Agreements") heretofore executed by Employee or identified
in the stock option agreements heretofore granted to Employee, copies of which
are on file in the records of the Company, which Shareholders' Agreements shall
be applicable to all shares of common stock issued to Employee upon the exercise
of any stock options granted to Employee before or after the date hereof.
8. Employee Benefits. Employee shall be eligible to (i) receive
health and welfare benefits under the Company's regular and ongoing plans,
policies and programs available, from time to time, to senior executive officers
of the Company, in accordance with the provisions of such plans, policies and
programs governing eligibility and participation; provided, however, that such
benefits may be modified, amended or rescinded by the Board in its sole
discretion, and (ii) all the other rights and benefits of an employee of the
Company. Nothing herein shall be deemed to affect in any way Employee's rights
and the Company's obligations with respect to medical insurance
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benefits arising under the terms of the America's Favorite Chicken Company 1994
Supplemental Benefit Plan for Executive Officers.
9. Business Expenses.
9.01. Business Expenses. All reasonable and customary
business expenses incurred by Employee in the performance of his duties
hereunder shall be paid or reimbursed by the Company in accordance with the
Company's policies in effect, from time to time.
9.02. Office and Support Services. Employee will be
reimbursed by the Company for office and support services up to $50,000 per
annum.
10. Termination of Employment.
10.01. Definitions. For purposes of this Section 10, the
following terms shall have the following meanings:
(a) Cause. The term "Cause" shall mean (i) Employee
commits fraud or is convicted of a crime involving moral turpitude,
(ii) Employee, in carrying out his duties hereunder, has been guilty of
gross neglect or gross misconduct resulting in harm to the Company or
any of its subsidiaries or affiliates, (iii) Employee shall have
refused to follow or comply with the duly promulgated directives of the
Board of Directors of the Company, (iv) Employee has breached any of
the provisions of Section 12.02 through and including 12.04 or (v)
Employee otherwise materially breaches this Agreement.
(b) Disability. The term "Disability" shall mean the good
faith determination by the Board of Directors of the Company that
Employee has failed to or has been unable to perform his duties as the
result of any physical or mental disability for an aggregate of ninety
(90) calendar days.
10.02. Termination upon Death or Disability. If Employee's
employment is terminated due to his death or Disability, the Company shall pay
to the estate of the Employee or to the Employee, as the case may be, within
fifteen (15) days following Employee's death or upon his termination in the
event of Disability, all amounts then payable to Employee pro rated through the
date of termination pursuant to Sections 6 and 9, for the year in which such
termination occurs.
10.03. Termination for other than Death or Disability or for
Cause. If Employee's employment is terminated by the Company other than (i) by
reason of Employee's death or Disability, (ii) for Cause, or (iii) if Employee
is not re-elected to the Board at the Annual Meeting for the purpose of election
of Directors during the Term of this Agreement, the Company shall pay or provide
to Employee, in lieu of all other amounts payable hereunder or benefits to be
provided hereunder the following: (a) a payment equal to Employee's Base Salary
at the time of termination less any amount of
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Employee's Base Salary for the fiscal year including the date of termination
that has been previously paid to Employee; and (b) the acceleration of any
unvested rights of Employee under any stock options or other equity incentive
programs such that they shall immediately vest under the terms of such plans. As
a condition precedent to the requirement of Company to make such payments, grant
such accelerated vesting or provide such benefits, Employee shall not be in
breach of his obligations under Section 12 hereof and Employee shall execute and
deliver to Company a general release in favor of the Company in substantially
the same form as the general release then contained in the latest Severance
Agreement being used by the Company.
Any payments required to be made under this Section 10.03 shall be made
to Employee, at the election of the Company, as soon as practicable after the
date of Employee's termination of employment.
10.04. Voluntary Termination by Employee or Termination for
Cause. Employee may terminate his employment hereunder at any time whatsoever,
with or without cause, upon thirty (30) days prior written notice to the
Company. The Company may terminate Employee's employment hereunder at any time
without notice for Cause. In the event Employee's employment is terminated
voluntarily by Employee or by the Company for Cause:
(a) The Company shall pay to Employee upon such
termination all amounts then due under sections 6 and 9, prorated,
through the date of termination for the year in which he is terminated;
and
(b) The Company shall be under no obligation to make
severance payments to Employee or continue any benefits being provided
to Employee beyond the date of such termination.
11. Gross Up Payment. The term "Gross Up Payment" as used in this
Agreement shall mean a payment to or on behalf of Employee which shall be
sufficient to pay (1) 100% of any excise tax described in this Section 11, (2)
100% of any federal, state and local income tax and social security and other
employment tax on the payment made to pay such excise tax as well as any
additional taxes on such payment and (3) 100% of any interest or penalties
assessed by the Internal Revenue Service on Employee which are related to the
timely payment of such excise tax (unless such interest or penalties are
attributable to Employee's willful misconduct or gross negligence with respect
to such timely payment). A Gross Up Payment shall be made by the Company
promptly after either the Company or the Company's independent accountants
determine that any payments and benefits called for under this Employment
Agreement together with any other payments and benefits made available to
Employee by the Company and any other person will result in Employee being
subject to an excise tax under Section 4999 of the Internal Revenue Code of
1986, as amended (which shall be referred to in this Section 11 as the "Code")
or such an excise tax is assessed against Employee as a result of any such
payments and other benefits if Employee takes such action (other than waiving
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Employee's right to any payments or benefits in excess of the payments or
benefits which Employee has expressly agreed to waive under this Section 11) as
the Company reasonably requests under the circumstances to mitigate or challenge
such excise tax; provided, however, if the Company or the Company's independent
accountants make the determination described in this Section 11 and, further,
determine that Employee will not be subject to any such excise tax if Employee
waives Employee's right to receive a part of such payments or benefits and such
part does not exceed $10,000, Employee shall irrevocably waive Employee's right
to receive such part if an independent accountant or lawyer retained by Employee
and paid by the Company agrees with the determination made by the Company or the
Company's independent accountants with respect to the effect of such reduction
in payments or benefits. Any determinations under this Section 11 shall be made
in accordance with Section 280G of the Code and any applicable related
regulations (whether proposed, temporary or final) and any related Internal
Revenue Service rulings and any related case law and, if the Company reasonably
requests that Employee take action to mitigate or challenge, or to mitigate and
challenge, any such tax or assessment (other than waiving Employee's right to
any payments or benefits in excess of the payments or benefits which Employee
has expressly agreed to waive under this Section 11) and Employee complies with
such request, the Company shall provide Employee with such information and such
expert advice and assistance from the Company's independent accountants, lawyers
and other advisors as Employee may reasonably request and shall pay for all
expenses incurred in effecting such compliance and any related fines, penalties,
interest and other assessments.
12. Confidentiality and Non-Competition.
12.01. Definitions. For purposes of this Section 12, the
following terms shall have the following meanings:
"Affiliate" means any corporation, limited liability company,
partnership or other entity of which the Company owns at least fifty
percent (50%) of the outstanding equity and voting rights, directly or
indirectly, through any other corporation, limited liability company,
partnership or other entity.
"Businesses" means the businesses engaged in by the Company
directly or through its Affiliates immediately prior to termination of
employment.
"Confidential Information" means information which does not
rise to the level of a Trade Secret, but is valuable to the Company or
any Affiliate and provided in confidence to Employee.
"Proprietary Information" means, collectively, Trade Secrets
and Confidential Information.
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"Restricted Period" means the period commencing as of the date
hereof and ending on that date two years (2) year after the termination
of Employee's employment with the Company for any reason, whether
voluntary or involuntary.
"Trade Secrets" means information which derives economic
value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and is the subject of
efforts that are reasonable under the circumstances to maintain its
secrecy.
12.02. Covenant Not-To-Disclose. The Company and Employee
recognize that, during the course of Employee's employment with the Company, the
Company has disclosed and will continue to disclose to Employee Proprietary
Information concerning the Company and the Affiliates, their products, their
franchisees, their services and other matters concerning their Businesses, all
of which constitute valuable assets of the Company and the Affiliates. The
Company and Employee further acknowledge that the Company has, and will, invest
considerable amounts of time, effort and corporate resources in developing such
valuable assets and that disclosure by Employee of such assets to the public
shall cause irreparable harm, damage and loss to the Company and the Affiliates.
Accordingly, Employee acknowledges and agrees:
(a) that the Proprietary Information is and shall remain
the exclusive property of the Company (or the applicable Affiliate);
(b) to use the Proprietary Information exclusively for
the purpose of fulfilling his obligations under this Agreement;
(c) to return the Proprietary Information, and any copies
thereof, in his possession or under his control, to the Company (or the
applicable Affiliate) upon request of the Company (or the Affiliate),
or expiration or termination of Employee's employment hereunder for any
reason; and
(d) to hold the Proprietary Information in confidence and
not copy, publish or disclose to others or allow any other party to
copy, publish or disclose to others in any form, any Proprietary
Information without the prior written approval of an authorized
representative of the Company.
The obligations and restrictions set forth in this Section 12.02 shall survive
the expiration or termination of this Agreement, for any reason, and shall
remain in full force and effect as follows:
(x) as to Trade Secrets, indefinitely, and
(y) as to Confidential Information, for a period of two (2)
years after the expiration or termination of this Agreement for any
reason.
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The confidentiality, property, and proprietary rights protections
available in this Agreement are in addition to, and not exclusive of, any and
all other corporate rights, including those provided under copyright, corporate
officer or director fiduciary duties, and trade secret and confidential
information laws. The obligations set forth in this Section 12.02 shall not
apply or shall terminate with respect to any particular portion of the
Proprietary Information which (i) was in Employee's possession, free of any
obligation of confidence, prior to his receipt from the Company or its
Affiliate, (ii) Employee establishes the Proprietary Information is already in
the public domain at the time the Company or the Affiliate communicates it to
Employee, or becomes available to the public through no breach of this Agreement
by Employee, or (iii) Employee establishes that he received the Proprietary
Information independently and in good faith from a third party lawfully in
possession thereof and having no obligation to keep such information
confidential.
12.03. Covenant of Non-Disparagement and Cooperation. Employee
agrees that he shall not at any time during or following the term of this
Agreement make any remarks disparaging the conduct or character of the Company
or the Affiliates or any of the Company's or the Affiliates' current or former
agents, employees, officers, directors, successors or assigns (collectively the
"Related Parties"). In addition, Employee agrees to cooperate with the Related
Parties, at no extra cost, in any litigation or administrative proceedings
(e.g., EEOC charges) involving any matters with which Employee was involved
during Employee's employment with the Company. The Company shall reimburse
Employee for travel expenses approved by the Company or the Affiliates incurred
in providing such assistance.
12.04. Covenant Not-To-Induce. Employee covenants and agrees
that during the Restricted Period, he will not, directly or indirectly, on his
own behalf or in the service or on behalf of others, hire, solicit, take away or
attempt to hire, solicit or take away any person who is or was an employee of
the Company or any Affiliate during the one (1) year period preceding the
termination of Employee's employment.
12.05. Remedies. The Company and Employee expressly agree that
a violation of any of the covenants contained in subsections 12.02 through and
including 12.04 of this Section 12, or any provision thereof, shall cause
irreparable injury to the Company and that, accordingly, the Company shall be
entitled, in addition to any other rights and remedies it may have at law or in
equity, to an injunction enjoining and restraining Employee from doing or
continuing to do any such act and any other violation or threatened violation of
said Sections 12.02 through and including 12.04 hereof.
12.06. Severability. In the event any provision of this
Agreement shall be found to be void, the remaining provisions of this Agreement
shall nevertheless be binding with the same effect as though the void part were
deleted; provided, however, if subsections 12.02 through and including 12.04 of
this Section 12 shall be declared invalid, in whole or in part, Employee shall
execute, as soon as possible, a supplemental agreement with the Company,
granting the Company, to the extent legally possible, the
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protection afforded by said subsections. It is expressly understood and agreed
by the parties hereto that the Company shall not be barred from enforcing the
restrictive covenants contained in each of subsections 12.02 through and
including 12.04, as each are separate and distinct, so that the invalidity of
any one or more of said covenants shall not affect the enforceability and
validity of the other covenants.
12.07. Ownership of Property. Employee agrees and
acknowledges that all works of authorship and inventions, including but not
limited to products, goods, know-how, Trade Secrets and Confidential
Information, and any revisions thereof, in any form and in whatever stage of
creation or development, arising out of or resulting from, or in connection
with, the services provided by Employee to the Company or any Affiliate under
this Agreement are works made for hire and shall be the sole and exclusive
property of the Company or such Affiliate. Employee agrees to execute such
documents as the Company may reasonably request for the purpose of effectuating
the rights of the Company or the Affiliate in any such property.
12.08. No Defense. The existence of any claim, demand,
action or cause of action of the Employee against the Company shall not
constitute a defense to the enforcement by the Company of any of the covenants
or agreements herein.
13. Indemnification.
13.01. Company Obligations. The Company hereby indemnifies
and agrees to hold harmless Employee, to the extent allowed by applicable law,
against all liabilities, obligations, claims, demands, actions, causes of
action, lawsuits, judgments, expenses and costs, including but not limited to
the reasonable costs of investigation and attorney's fees, incurred by the
Employee as a result of any threat, demand, claim action or lawsuits, made,
instituted or initiated against the Employee, which arises out of, results from
or relates to this Agreement or any action taken by Employee in the course of
performance of Employee's duties hereunder, except for Employee's own gross
negligence or willful misconduct.
13.02. Notice and Defense of Claim. If any claim suit or
other legal proceeding shall be commenced, or any claim or demand be asserted
against the Employee and Employee desires indemnification pursuant to this
paragraph, the Company shall be notified to such effect with reasonable
promptness and shall have the right to assume at its full cost and expense the
entire control of any legal proceeding, subject to the right of the Employee to
participate (at his full cost and expense and with counsel of his choice) in the
defense, compromise or settlement thereof. The Employee shall cooperate fully in
all respects with the Company in any such defense, compromise or settlement,
including, without limitation, making available to the Company all pertinent
information under the control of the Employee. The Company may compromise or
settle any such action, suit, proceeding, claim or demand without Employee's
approval so long as the Company obtains for Employee's benefit a release of
liability with respect to such claim from the claimant and the Company assumes
and agrees to pay any
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amounts due with respect to such settlement. In no event shall the Company be
liable for any settlement entered into by the Employee without the Company's
prior written consent.
13.03. Survival. The provisions of this Section 13 shall
survive the termination of this Agreement for a period of four (4) years, unless
Employee is terminated for Cause, in which event the provisions of this Section
13 shall not survive termination of this Agreement.
14. Dispute Resolution
14.01. Agreement to Arbitrate. In consideration for his
continued employment with the Company, and other consideration, the sufficiency
of which is hereby acknowledged, Employee acknowledges and agrees that any
controversy or claim arising out of or relating to Employees employment,
termination of employment, or this Agreement including, but not limited to,
controversies and claims that are protected or covered by any federal, state, or
local statute, regulation or common law, shall be settled by arbitration
pursuant to the Federal Arbitration Act. This includes, but is not limited to,
violations or alleged violations of any federal or state statute or common law
(including, but not limited to, the laws of the United States or of any state,
or the Constitution of the United States or of any state), or of any other law,
statute, ordinance, including but not limited to, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, as Amended, the
Americans with Disabilities Act, the Equal Pay Act, the Employee Retirement
Income Security Act, the Rehabilitation Act of 1973, and any other statute or
common law. This provision shall not, however, preclude the Company from seeking
equitable relief as provided in Section 12.05 of this Agreement.
14.02. Procedure. The arbitration shall be conducted in
accordance with the Employment Arbitration Rules of the American Arbitration
Association: a single arbitrator who is experienced in employment law shall be
selected under those Rules, and the arbitration shall be initiated in Atlanta,
Georgia, unless the parties agree in writing to a different location or the
Arbitrator directs the arbitration to be held at a different location. Except
for filing fees, all costs of the arbitrator shall be allocated by the
arbitrator. The award rendered by the arbitrator shall be final and binding on
the parties hereto and judgment thereon may be entered in any court having
jurisdiction thereof. In addition to that provided for in the Employment
Arbitration Rules, the arbitrator has sole discretion to permit discovery
consistent with the Federal Rules of Civil Procedure and the judicial
interpretation of those rules upon request by any party; provided, however, it
is the intent of the parties that the arbitrator limit the time and scope of any
such discovery to the greatest extent practicable and provide a decision as
rapidly as possible given the circumstances of the claims to be determined. The
arbitrator also shall have the power and authority to grant injunctive relief
for any violation of Sections 12.02 through and including 12.04 and the
arbitrator's order granting such relief may be entered in any court of competent
jurisdiction. The agreement to arbitrate any claim arising out of the
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employment relationship or termination of employment shall not apply to those
claims which cannot be made subject to this provision by statute, regulation or
common law. These include, but are not limited to, any claims relating to work
related injuries and claims for unemployment benefits under applicable state
laws.
14.03. Rights of Parties. Nothing in this clause shall be
construed to prevent the Company from asking a court of competent jurisdiction
to enter appropriate equitable relief to enjoin any violation of this Agreement
by Employee. The Company shall have the right to seek such relief in connection
with or apart from the parties' rights under this clause to arbitrate all
disputes. With respect to disputes arising under this Agreement that are
submitted to a court rather than an arbitrator, including actions to compel
arbitration or for equitable relief in aid of arbitration, the parties agree
that venue and jurisdiction are proper in any state or federal court lying
within Atlanta, Georgia and specifically consent to the jurisdiction and venue
of such court for the purpose of any proceedings contemplated by this paragraph.
By entering into this Agreement the parties have waived any right which may
exist for a trial by jury and have expressly agreed to resolve any disputes
covered by this Agreement through the arbitration process described herein.
15. Employee Acknowledgment. By signing this Agreement, Employee
acknowledges that the Company has advised Employee of his right to consult with
an attorney prior to executing this Agreement; that he has the right to retain
counsel of his own choosing concerning the agreement to arbitrate or any waiver
of rights or claims; that he has read and fully understands the terms of this
Agreement and/or has had the right to have it reviewed and approved by counsel
of choice, with adequate opportunity and time for such review; and that he is
fully aware of its contents and of its legal effect. Accordingly, this Agreement
shall not be construed against any party on the grounds that the party drafted
this Agreement. Instead, this Agreement shall be interpreted as though drafted
equally by all parties.
16. Amendments. This Agreement may not be altered, modified or
amended except by a written instrument signed by each of the parties hereto.
17. Successors. As used in this Agreement, the term the Company
shall include any successors to all or substantially all of the business and/or
assets of the Company which assumes and agrees to perform this Agreement.
18. Assignment. Neither this Agreement nor any of the rights or
obligations of either party hereunder shall be assigned or delegated by any
party hereto without the prior written consent of the other party, except that
the Company may without the consent of Employee assign its rights and delegate
its duties hereunder to any successor to the business of the Company. In the
event of the assignment by the Company of its rights and the delegation of its
duties to a successor to the business of the Company and the assumption of such
rights and obligations by such successor, the Company shall,
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effective upon such assumption, be relieved from any and all obligations
whatsoever to Employee hereunder.
19. Waiver. Waiver by any party hereto of any breach or default by
any other party of any of the terms of this Agreement shall not operate as a
waiver of any other breach or default, whether similar to or different from the
breach or default waived.
20. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
21. Survival. Notwithstanding anything herein to the contrary, the
provisions of Sections 9, 10, 11, 12, and 14 shall survive the termination of
this Agreement.
22. Entire Terms. This Agreement contains the entire understanding
of the parties with respect to the employment of Employee by the Company. There
are no restrictions, agreements, promises, warranties, covenants or undertakings
other than those expressly set forth herein. This Agreement supersedes all prior
agreements, arrangements and understandings between the parties, whether oral or
written, with respect to the subject matter hereof, including specifically the
Employment Agreement dated December 8, 2000, as amended, but shall not supersede
or modify any other existing agreements between Company and Employee relating to
such matters as stock options, retirement or other matters not specifically
included herein.
23. Notices. Notices and all other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by United States registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to Employee:
Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to the Company to:
AFC Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxxxxx XX, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
or to such other address or such other person as Employee or the Company shall
designate in writing in accordance with this Section 23 except that notices
regarding changes in notices shall be effective only upon receipt.
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24. Headings. Headings to Sections in this Agreement are for the
convenience of the parties only and are not intended to be a part of, or to
affect the meaning or interpretation of, this Agreement.
25. Governing Laws. The Agreement shall be governed by the laws of
the State of Georgia without reference to the principles of conflict of laws.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and Employee has hereunto set his hand as of the day and year first
above written.
COMPANY:
AFC ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
General Counsel
EMPLOYEE:
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
14
Employee's Initials:
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