Exhibit 10.2
THIS CONTRACT IS SUBJECT TO ARBITRATION PURSUANT TO THE
FEDERAL ARBITRATION ACT
EMPLOYMENT, NONCOMPETITION
AND SEVERANCE AGREEMENT
This Employment, Noncompetition and Severance Agreement
(this "Agreement") is made and entered into as of
____________, 200___ by and between (Insert Name), an
individual (the "Executive"), and Ryan's Restaurant Group,
Inc., a South Carolina corporation headquartered in
Greenville County, South Carolina (the "Company"). As used
herein, the term "Company" shall include the Company and any
and all of its subsidiaries where the context so applies.
W I T N E S S E T H
WHEREAS the Company's Board of Directors believes that
the Executive is instrumental in the success of the Company;
WHEREAS the Company desires to continue to employ the
Executive as (Insert Position) of the Company and in such
other capacities as the Executive is currently employed as
of the date hereof;
WHEREAS the Company has adopted an Executive Bonus Plan
(the "Executive Bonus Plan") which provides for incentive
compensation payments to be made to the executive officers
of the Company (including the Executive);
WHEREAS the Executive is willing to continue employment
with the Company under the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants and agreements contained herein and
other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Employment. Subject to the terms and conditions
hereof, the Company hereby employs the Executive and
Executive hereby accepts such employment as the
_______________________ of the Company having such duties
and responsibilities as are set forth in Section 3 below.
2. Definitions. For purposes of this Agreement, the
following terms shall have the meanings specified below.
"Change in Control" shall mean
(i) The acquisition, directly or indirectly, by any Person
within any twelve month period of securities of the Company
representing an aggregate of 20% or more of the combined
voting power of the Company's then outstanding securities;
or
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board;
cease for any reason to constitute at least a majority
thereof, unless the election of each new director was
approved in advance by a vote of at least a majority of the
directors then still in office who were directors at the
beginning of the period; or
(iii) consummation of (A) a merger, consolidation or
other business combination of the Company with any other
Person or affiliate thereof, other than a merger,
consolidation or business combination which would result in
the outstanding common stock of the Company immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into common stock of the
surviving entity or a parent or affiliate thereof) at least
51% of the outstanding common stock (on a fully diluted
basis) of the Company or such surviving entity or parent or
affiliate thereof outstanding immediately after such merger,
consolidation or business combination, or (B) a plan of
complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially
all of the Company's assets; or
(iv) the occurrence of any other event or circumstance which
is not covered by (i) through (iii) above which the Board
determines affects control of the Company and, in order to
implement the purposes of this Agreement as set forth above,
adopts a resolution that such event or circumstance
constitutes a Change in Control for the purposes of this
Agreement.
"Compensation" as used in this Agreement shall mean
only base salary and annual performance bonus. Stock
options and other remuneration are not considered
"compensation" as the term is used in this Agreement.
"Cause" shall mean material criminal fraud, gross
negligence, material dereliction of duties, intentional
material damage to the property or business of the Company,
the commission of a material felony, or repeated failure to
carry out the reasonable directions of the Board of
Directors or the Chief Executive Officer.
"Confidential Information" shall mean all business and
other information relating to the business of the Company,
including without limitation, trade secrets as defined in
the South Carolina Trade Secrets Act, technical or
nontechnical data, programs, methods, techniques, processes,
financial data, financial plans, product plans, and lists of
actual or potential customers, which (i) derives economic
value, actual or potential, from not being generally known
to, and not being readily ascertainable by proper means by,
other Persons, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy
or confidentiality. Such information and compilations of
information shall be contractually subject to protection
under this Agreement whether or not such information
constitutes a trade secret and is separately protectable at
law or in equity as a trade secret. Confidential
Information does not include confidential business
information which does not constitute a trade secret under
applicable law two years after any expiration or termination
of this Agreement.
"Disability" or "Disabled" shall mean the Executive's
inability, with or without reasonable accommodations, as a
result of physical or mental incapacity to substantially
perform his duties for the Company on a full-time basis for
a period of six (6) months.
"Involuntary Termination" shall mean the termination of
Executive's employment by the Executive following a Change
in Control which, in the reasonable judgment of the
Executive, is due to (i) a change of the Executive's
responsibilities, position (including status as (Insert
Position), its successor or ultimate parent entity, office,
title, reporting relationships or working conditions)
authority or duties (including changes resulting from the
assignment to the Executive of any duties inconsistent with
his positions, duties or responsibilities as in effect
immediately prior to the Change in Control); or (ii) a
change in the terms or status (including the rolling two
year termination date) of this Agreement; or (iii) a
reduction in the Executive's compensation or benefits; or
(iv) a forced relocation of the Executive outside the
Greenville metropolitan area; or (v) a significant increase
in the Executive's travel requirements.
"Person" shall mean any individual, corporation, bank,
partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or other entity.
"Voluntary Termination" shall mean the termination by
Executive of Executive's employment following a Change in
Control which is not the result of any of clauses (i)
through (v) set forth in the definition of Involuntary
Termination above.
3. Duties. During the term hereof, the Executive shall
have such duties and authority as are typical of the (Insert
Position) of a restaurant chain such as the Company,
including, without limitation, those specified in the
Company's Bylaws. Executive agrees that during the Term
hereof, he will devote his full time, attention and energies
to the diligent performance of his duties. Executive shall
not, without the prior written consent of the Company, at
any time during the Term hereof (i) accept employment with,
or render services of a business, professional or commercial
nature to, any Person other than the Company, (ii) engage in
any venture or activity which the Company may in good faith
consider to be competitive with or adverse to the business
of the Company or of any affiliate of the Company, whether
alone, as a partner, or as an officer, director, employee or
shareholder or otherwise, except that the ownership of not
more than 10% of the stock or other equity interest of any
publicly traded corporation or other entity shall not be
deemed a violation of this Section, or (iii) engage in any
venture or activity which the Board of Directors of the
Company may in good faith consider to interfere with
Executive's performance of his duties hereunder.
4. Term. Unless earlier terminated as provided herein,
the Executive's employment hereunder shall be for a rolling
term of two years (the "Term") commencing on the date
hereof, with compensation to be effective as of the date
first above written. This Agreement shall be deemed to
extend each day for an additional day automatically and
without any action on behalf of either party hereto. Either
party may, by notice to the other, cause this Agreement to
cease to extend automatically and, upon such notice, the
"Term" of this Agreement shall be the two years following
the date of such notice, and this Agreement shall terminate
upon the expiration of such Term. If no such notice is
given and this Agreement is terminated pursuant to Section 5
hereof, for the purposes of calculating any amounts payable
to the Executive as a result of such termination, the
remaining Term of this Agreement shall be deemed to be two
years from the date of such termination.
5. Termination. This Agreement may be terminated as
follows:
5.1 The Company. The Company shall have the
right to terminate Executive's employment hereunder at any
time during the Term hereof (i) for Cause, (ii) if the
Executive becomes Disabled, (iii) upon the Executive's
death, or (iv) without Cause.
5.1.1 If the Company terminates Executive's
employment under this Agreement pursuant to clauses (i),
(ii) or (iii) of Section 5.1, the Company's obligations
hereunder shall cease as of the date of termination subject
to Section 6.4; provided, however, if Executive is
terminated for Cause after a Change in Control, then such
termination shall be treated as a Voluntary Termination as
contemplated in Section 5.2.3 below. If Executive becomes
Disabled, and is being compensated pursuant to the Company's
existing disability insurance, Executive shall receive no
additional compensation for disability from the Company
under this Agreement.
5.1.2 If the Company terminates Executive
pursuant to clause (iv) of Section 5.1, Executive shall be
entitled to receive immediately as severance upon such
termination, aggregate compensation and benefits provided in
Section 6 equal to one times Executive's annual compensation
being paid at the time of termination or two times
Executive's annual compensation being paid a the time of
termination following a Change of Control. For purposes of
determining compensation, the average of the last three
annual performance bonuses paid prior to termination shall
be added to the base salary that the Executive was receiving
at the time of the termination.
5.1.3 In the event of such termination
pursuant to clauses (ii) and (iv) of Section 5.1, all rights
of Executive pursuant to awards of share grants or options
granted by the Company shall be deemed to have vested and
shall be released from all conditions and restrictions,
(including the requirement to exercise such options no later
than three months of the termination of employment), except
for restrictions on transfer pursuant to the Securities Act
of 1933, as amended.
5.2 By Executive. Executive shall have the right
to terminate his employment hereunder if (i) the Company
materially breaches this Agreement and such breach is not
cured within 30 days after written notice of such breach is
given by Executive to the Company; (ii) there is a Voluntary
Termination; or (iii) there is an Involuntary Termination.
5.2.1 If Executive terminates his employment
other than pursuant to clauses (i), (ii) or (iii) of Section
5.2, the Company's obligation under this Agreement shall
cease (except as provided in Section 6.4) as of the date of
such termination and Executive shall be subject to the
noncompetition provisions set forth in Section 8 and Exhibit
A.
5.2.2 If Executive terminates his employment
hereunder pursuant to either clause (i) or clause (iii) of
Section 5.2, Executive shall be entitled to receive
immediately as severance aggregate compensation and benefits
provided in Section 6 equal to two times Executive's total
compensation (which includes only the base salary and the
annual performance bonus) being paid at the time of
termination. For purposes of determining total
compensation, the current base salary at the time of
termination shall be added to the average of the last three
annual performance bonuses paid prior to termination.
5.2.3 If Executive terminates his employment
pursuant to clause (ii) of Section 5.2, Executive shall be
entitled to receive immediately as severance aggregate
compensation and benefits provided in Section 6 equal to one
times Executive's total compensation being paid at the time
of Voluntary Termination. For purposes of determining total
compensation, the current base salary at the time of
termination shall be added to the average of the last three
annual performance bonuses paid prior to termination.
5.2.4 In addition, in the event of such
termination pursuant to any of clauses (i) through (iii) of
this Section 5.2, all rights of Executive pursuant to awards
of share grants or options granted by the Company shall be
deemed to have vested and shall be released from all
conditions and restrictions, (including the requirement to
exercise such option no later than three months of the
termination of employment), except for restrictions on
transfer pursuant to the Securities Act of 1933, as amended.
If Executive becomes Disabled, and is being compensated
pursuant to the Company's existing disability insurance,
Executive shall receive no additional compensation for
disability from the Company under this Agreement.
6. Compensation. In consideration of Executive's services
and covenants hereunder, Company shall pay to Executive the
compensation and benefits described below (which
compensation shall be paid in accordance with the normal
compensation practices of the Company and shall be subject
to such deductions and withholdings as are required by law
or policies of the Company in effect from time to time,
provided that his salary pursuant to Section 6.1 shall be
payable not less frequently than monthly):
6.1 Annual Salary. During the Term hereof, the
Company shall initially pay to Executive a salary at the
rate of $__________ per annum. Executive's salary will be
reviewed by the Board of Directors or such committee as may
be designated by the Board of Directors of the Company at
the beginning of each of its fiscal years and, in the sole
discretion of the Board of Directors, may be increased for
such year;
6.2 Annual Incentive Bonus. During the Term
hereof, the Board of Directors may pay to Executive an
annual incentive cash bonus in accordance with the terms of
the Company's Executive Bonus Plan.
6.3 Stock Options and Restricted Stock. During
the Term hereof, the Board of Directors, in its discretion,
may grant Executive options to purchase Company Common
Stock.
6.4 Medical Benefits Upon Retirement. Upon
Executive's retirement or other termination from the
Company:
6.4.1 The Company's Executive Medical Plan
(100% coverage) for Executive and his family shall
terminate;
6.4.2 The Company, at its sole expense,
shall maintain medical and dental coverage, including eye
care, for Executive and dependent spouse (if the dependent
spouse is covered on the date of retirement or other
termination) during their lives or the life of the survivor,
such coverage to be on at least the same basis as it is
provided from time to time by the Company to active
Supervisors/District Managers; and
6.4.3 No premium payment will be required
from Executive or from the Executive's spouse, should she
survive the Executive.
6.4.4 The Company's Group Medical Plan shall
be the secondary payer of benefits if Executive becomes
eligible to receive insurance either from another employer
or Medicare after retiring from the Company. In either
case, the Company's Group Medical Plan would be the
secondary payer. In addition, the spouse of the Executive
is affected in the same manner.
6.4.5 In the event the Company should for
any reason be unable to provide such medical and dental
coverage to Executive and/or their spouse, the Company shall
pay to Executive or to the Executive's spouse, should the
spouse survive the Executive, the cash amount necessary to
obtain equivalent medical and dental coverage, including eye
care.
6.4.6 In the event the Executive dies while
still working for the Company and before retirement, the
Executive's spouse shall receive the survival medical
benefits described herein as if the Executive had died after
retiring from the Company.
6.4.7 In the event the Executive becomes
disabled (as defined by Ryan's disability plans) for more
than six months and before retirement, the Executive and the
Executive's spouse shall continue to participate in the
medical benefit plans on the same basis as exists under the
retirement provisions of this agreement.
6.5 Other Benefits. While employed by the
Company, Executive shall be entitled to share in any other
employee benefits generally provided by the Company to its
most highly ranked executives for so long as the Company
provides such benefits.
7. Excess Parachute Payments.
7.1 Severance Payments. It is the intention of
the parties hereto that the severance payments and other
compensation provided for herein are reasonable compensation
for Executive's services to the Company and shall not
constitute "excess parachute payments" within the meaning of
Section 280G of the Code and any regulations thereunder. In
the event that the Company's independent accountants acting
as auditors for the Company on the date of a Change in
Control determine that the payments provided for herein
constitute "excess parachute payments," then the
compensation payable hereunder shall be reduced to the point
that such compensation shall not qualify as "excess
parachute payments."
7.2 To the extent that payments under Section 7
cause a "parachute payment," as defined in Section
280G(b)(2) of the Code, the Company shall indemnify
Executive and hold him harmless against all claims, losses,
damaged, penalties, expenses, and excise taxes relating
thereto. To effect this indemnification, the Company shall
pay Executive an additional amount that is sufficient to pay
any excise tax imposed by Code Section 4999 on the payments
and benefits to which Executive is entitled without the
additional amount plus any penalties or interest imposed by
the Internal Revenue Service in regard to such amounts, plus
another additional amount sufficient to pay all the excise
and income taxes on the additional amounts. The
determination of any additional amount that must be paid
under this section at any time shall be made in good faith
by the independent auditors then employed by the Company.
8. Confidentiality, Nonsolicitation and Noncompetition
Agreement. Employee agrees that he has read, is bound by,
and is subject to, the obligations, covenants, and
agreements set forth in the Company's Confidentiality,
Nonsolicitation and Noncompetition Agreement, attached
hereto as Exhibit A, and agrees that Company agrees to the
consideration and employment herein on condition of
Employee's consent to the obligations, covenants, and
agreements set forth in Exhibit A.
9. Assignment. The parties acknowledge that this
Agreement has been entered into due to, among other things,
the special skills of Executive, and agree that this
Agreement may not be assigned or transferred by Executive,
in whole or in part, without the prior written consent of
Company.
10. Notices. All notices, requests, demands, and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given if
delivered or seven days after mailing if mailed, first
class, certified mail postage prepaid:
To the Company: Ryan's Restaurant Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chairman and CEO
To Executive: Name
Street address
City, State, zip code
Any party may change the address to which notices, requests,
demands, and other communications shall be delivered or
mailed by giving notice thereof to the other party in the
same manner provided herein.
11. Provisions Severable. If any provision or covenant, or
any part thereof, of this Agreement should be held by any
court to be invalid, illegal or unenforceable, either in
whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or
enforceability of the remaining provisions or covenants, or
any part thereof, of this Agreement, all of which shall
remain in full force and effect.
12. Remedies. The Executive acknowledges that if he
breaches or threatens to breach his covenants and agreements
in this Agreement, such actions may cause irreparable harm
and damage to the Company which could not be compensated in
damages. Accordingly, if Executive breaches or threatens to
breach this Agreement, the Company shall be entitled to
injunctive relief from a court or arbitration panel, in the
Company's sole discretion, in addition to any other rights
or remedies of the Company. In the event that Executive is
reasonably required to engage legal counsel to enforce his
rights hereunder against the Company, Executive shall be
entitled to receive from the Company his reasonable
attorneys' fees and costs; provided that Executive shall not
be entitled to receive those fees and costs related to
matters, if any, in which he is not the prevailing party.
Also, no attorneys' fees or costs will be paid by the
Company to the Executive related to any attempt to avoid the
arbitration provisions of this Agreement.
13. Waiver. Failure of either party to insist, in one or
more instances, on performance by the other in strict
accordance with the terms and conditions of this Agreement
shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of
any such term or condition or of any other term or condition
of this Agreement, unless such waiver is contained in a
writing signed by the party making the waiver.
14. Amendments and Modifications. This Agreement may be
amended or modified only by a writing signed by other
parties hereto.
15. Governing Law; Arbitration; and Expenses.
15.1 Governing Law. The validity and effect of
this agreement shall be governed by and construed and
enforced in accordance with the laws of the State of South
Carolina.
15.2 Arbitration. Except as otherwise set forth
herein and on Exhibit A, the Executive and the Company
hereby agree to arbitrate in the State of South Carolina any
claims or disputes pertaining to this Agreement or to any
matter arising therefrom. The Executive and the Company
expressly submit and consent in advance to the exclusive
remedy of arbitration. There must be full compliance with
the rules of the American Arbitration Association in order
to resolve any legal disputes regarding this Agreement
between the Company and the Executive. The exclusive choice
of forum set forth in this Section shall not be deemed to
preclude the enforcement of any judgment obtained in such
forum or the taking of any action under this Agreement to
enforce such judgment in any appropriate jurisdiction.
15.3 Payment of Expenses. All costs and expenses
(exclusive of attorneys' fees) incurred in connection with
any arbitration relating to a claim or dispute pertaining to
this Agreement shall be paid by the Company. The Company
shall bear the cost of all attorneys' fees incurred by the
Company. The attorneys' fees incurred by the Executive in
pursuing the claim shall be paid by the party (parties) as
determined by the arbitrator. In allocating the attorneys'
fees under this Section, the arbitrator should consider the
relative merits of each party's position and the manner and
means the party undertook to assert the party's case.
15.4 Indemnification. Nothing contained in this
Section shall be deemed to limit the Company's obligation to
indemnify the Executive to the fullest extent permitted by
applicable law with respect of any actions, claims or
proceedings which are based upon acts or omissions of the
Executive related to the performance of his duties hereunder
to the extent he would have otherwise been entitled to
indemnification under the by-laws or charter of the Company
or to the extent to which indemnification is to be paid to
officers and directors as a matter of law.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
EXECUTIVE RYAN'S RESTAURANT GROUP, INC.
________________________ By:______________________________
insert name ▇▇▇▇▇▇▇ ▇. Way, Chairman and
CEO
RYAN'S RESTAURANT GROUP, INC.
By:_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chairman
of the Compensation Committee of
the Board of Directors of Ryan's
Restaurant Group, Inc.
EXHIBIT A
Employee Confidentiality, Non-Solicitation, and
Noncompetition Agreement
This Employee Confidentiality, Non-Solicitation and
Noncompetition Agreement (the "Agreement") is made a part of
that certain Employment Agreement made and entered into on
(date) by and between Ryan's Family Steak Houses TLC, Inc.
(the "Company") and (name) ("Employee").
WHEREAS, the Company is (1) engaged in the restaurant
industry, in particular operating family steak house
restaurants and buffet style restaurants (the "Business");
and (2) may in the future engage in and/or actively be
considering other activities or businesses within the
restaurant industry, of which Employee may be aware at the
termination of Employee's employment ("future Business"),
provided, however, that no activity or business that the
company has ceased to consider engaging in shall be included
in Future Business;
WHEREAS, the Company has a proprietary interest in, and its
business is one that requires secrecy concerning, Company
Data, which is defined as Company information that is not
generally known by or readily ascertainable to the public or
within the industry, and includes (i) inventions,
discoveries, products, improvements, know-how, methods,
processes, and methods employed or sold by the Company
relating to the Business or future Business; (ii) customer,
vendor, supplier and employee data (whether or not reduced
to writing), including but not limited to customer lists,
customer contacts, pricing information, personnel
information, concessions and prior bids; (iii) marketing
information, including but not limited to business strategy,
forecasts, plans and research; (iv) business plans,
including but not limited to capital projects and system
buildouts; (v) financial information; and (vi) trade secrets
as defined by the South Carolina Trade Secrets Act. Company
Data includes documents, records, tapes, files, computer
files, computer software, media, and any other medium of
communicating or storing information;
WHEREAS, among other things, the Company currently owns and
operates restaurants in 23 states in the United States;
WHEREAS, Employee desires to continue in an employment
relationship with the Company in an executive capacity as a
result of which he may be exposed to or create Company Data;
WHEREAS, it is understood and agreed that the Company will
suffer substantial loss and damage if Employee should
divulge to any person, firm, corporation, or business entity
("Third Party"), including but not limited to any Third
Party that competes with the Company, any Company Data
without proper authorization during or after Employee's
employment;
WHEREAS, Employee agrees that the provisions and
restrictions contained in this Agreement are fair and
reasonable and required for the Company's protection of its
legitimate interests, that such restrictions are reasonable
in scope, area, and time, and will not unreasonably prevent
Employee from pursuing other business ventures or employment
opportunities or otherwise cause a financial hardship upon
Employee;
NOW, THEREFORE, in consideration of the promises herein,
Employee's continued employment by the Company, and such
other good and valuable consideration, including (without
limitation) the consideration contained in the Employment
Agreement to which this Agreement is attached, it is
covenanted and agreed as follows:
1. Employee represents and warrants that he is not subject
to any noncompetition or non-solicitation agreement or
other agreement with any Third Party that would
prohibit him from continuing employment with the
Company or would interfere with the performance of his
duties to the Company. Conversely, without breaching
the confidentiality provisions of this Agreement,
Employee agrees to disclose the existence of this
Agreement to any subsequent employer.
2. Except as may be necessary to perform his normal duties
for the Company, Employee shall hold Company Data in
confidence and shall not divulge to any Third Party at
any time Company Data obtained or used by him (or by
other employees of the Company) during the course of
his employment with the Company without first obtaining
the express written authorization of the Board of
Directors of the Company. Employee agrees to promptly
inform Company of any breach of confidentiality of
Company Data by any other person that comes to his
attention.
3. Except as may be necessary to perform his normal duties
for the Company, Employee will not remove Company Data
(in whatever form it is derived) from Company premises
without obtaining the express written authorization of
the Board of Directors of the Company. Employee will
return all Company property, including but not limited
to Company Data and all copies thereof, in his
possession upon termination of his employment.
4. Employee covenants and agrees that during the period of
his employment and for a period of 24 months thereafter
(the "Restricted Period"), he will not, for himself or
on behalf of any Third Party, directly or indirectly,
consult, solicit, hire, attempt to hire, or encourage
any
(i) present employee of the Company to
accept employment with any Third Party that
competes, directly or indirectly, with the
Company in the (1) Business or (2) Future
Business; or
(ii) any former employee of the Company who,
at the time of Employee's termination, has
been away from the Company for less than six
months, to accept employment with any Third
Party that competes, directly or indirectly,
with the Company in the (1) Business or (2)
Future Business.
5. Employee recognizes that he is employed at the highest
levels of the Company and has access to the Company's
most sensitive and confidential information, including
long-range projections, marketing strategies, and other
Company Data. Employee also agrees that Company's
market extends to many states throughout the United
States and that limiting the scope of this Agreement to
South Carolina will not protect Company's legitimate
business interests. Employee covenants and agrees,
therefore, that during the Restricted Period, he will
not work for a Competing Company (as defined below) in
the Company's Market Territory (as defined below),
including without limitation, as proprietor, partner,
investor, shareholder, director, officer, employee,
consultant, independent contractor, or otherwise;
provided, however, that the foregoing restriction shall
not prohibit Employee from being a passive investor
owning less than 10% equity interest in a publicly
traded company.
"Competing Company" shall be limited to any Third Party
that operates restaurants in competition with the
Business (or the Future Business, as the case may be)
in the Market Territory.
"Market Territory" shall be limited to the area within
a five (5) mile radius of each of the Company's
existing restaurants in the United States at the time
of Employee's termination from the Company.
6. Employee has carefully considered the provisions of
this Agreement and agrees that, under all
circumstances, the restrictions set forth herein are
fair and reasonable and are required for the Company's
protection of its legitimate interests. The parties
hereto recognize that irreparable damage will result to
the Company in the event of the breach of any of the
covenants and assurances made by the Employee in this
Agreement. The parties therefore agree that the
Company shall be entitled, in addition to any other
remedies or damages available to it under the South
Carolina Trade Secrets Act or other statutory or common
law, to obtain injunctive relief without bond in order
to restrain the violation of such covenants by
Employee. This Agreement shall be binding upon and
inure to the benefit of the Company, its successors and
assigns, and shall be binding upon the Employee and his
executors, administrators, or representatives.
7. The provisions of this Agreement are severable. If any
Court should construe any portion of this Agreement to
be too broad to prevent enforcement to its fullest
extent then such restrictions shall be enforced to the
maximum extent that the Court finds reasonable and
enforceable. In the event that any of these
provisions, clauses, sentences, or paragraphs, or
portions ("provisions") thereof shall be held to be
invalid or unenforceable, the remaining provisions
hereof shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable
parts had not been included therein. The parties in no
way intend to include a provision that contravenes
public policy. Therefore, if any provision of this
Agreement is unlawful, against public policy, or
otherwise declared void or unenforceable, such
provision shall be deemed excluded from this Agreement,
which shall in all other respects remain in effect.
8. This Agreement was made in, and shall be governed by
and enforced under the laws of, the State of South
Carolina. This Agreement may be enforced only in a
court of competent jurisdiction in Greenville County,
South Carolina and Employee agrees to submit to
jurisdiction in Greenville County, South Carolina
whether or not he is then residing in South Carolina.
9. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors and assigns, and
shall be binding upon the Employee and his executors,
administrators, or representatives.
