OUTBACK STEAKHOUSE INTERNATIONAL OFFICER EMPLOYMENT AGREEMENT
Exhibit
10.02
OUTBACK
STEAKHOUSE INTERNATIONAL
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into effective May 1,
2002, by and between XXXX X. XXXXXXX, whose address is 0000 Xxxxxxx Xxxx Xxxxxx,
Xxxxxxx, XX 00000
(hereinafter referred to as “Employee”),
and OUTBACK STEAKHOUSE INTERNATIONAL, L.P., a Georgia limited partnership having
its principal office at Lenox
Center, 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
(the
“Company”).
W
I T N E
S S E T H:
This
Agreement is made and entered into under the following
circumstances:
A. WHEREAS,
the Company is an affiliate of Outback Steakhouse, Inc. (“OSI”);
and
B. WHEREAS,
the Company is engaged in the business of owning and operating casual steakhouse
restaurants known as “Outback Steakhouse®” utilizing a restaurant operating
system and trademarks licensed to the Company; and
C. WHEREAS,
the Company desires, on the terms and conditions stated herein, to employ
Employee as Chief Financial Officer of the Company; and
D. WHEREAS,
the Employee desires, on the terms and conditions stated herein, to be employed
by the Company as Chief Financial Officer of the Company.
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 Company hereby employs the Employee, and the Employee hereby accepts
employment with the Company as Chief Financial Officer of the Company for a
term
commencing on May 1, 2002, and expiring one (1) year thereafter (“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 Company that the Employee (i)
is
not subject to any written nonsolicitation
or noncompetition agreement affecting the Employee’s employment with the Company
(other than any prior agreement with the Company), (ii) is not subject to any
written confidentiality or nonuse/nondisclosure agreement affecting the
Employee’s employment with the Company (other than any prior agreement with the
Company), and (iii) has brought to the Company no trade secrets, confidential
business information, documents, or other personal property of a prior
employer.
3. Duties.
As
Chief
Financial Officer of the Company, the Employee shall:
(a) diligently
and faithfully perform all of the duties and functions as may be assigned to
the
Employee in such capacity by the Board of Directors, Chief Executive Officer
or
President of the Company; and
(b) not
to
create a situation that results in termination for “cause” as that term is
defined in Section
8
hereof.
The Employee shall be required hereunder to devote one hundred percent (100%)
of
the Employee’s full business time and effort to the business affairs of the
Company. The Employee
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shall
be
responsible for directly reporting to the President of the Company on all
matters for which the Employee is responsible.
Employee
shall: (i) devote the
Employee’s entire business time, attention, and energies to the business of the
Company, (ii) faithfully and competently perform the
Employee’s duties hereunder, and (iii) not create a situation constituting Cause
as defined in Section
8.
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 Company or its affiliates,
including but not limited to the xxxxxxx xxxxxxx policy of the Company or its
affiliates.
Notwithstanding
anything to the contrary herein, the parties acknowledge and agree that the
Employee shall, during the term of this Agreement, serve as an officer of such
other subsidiaries or affiliates of the Company or OSI as the Company shall
determine from time to time. In such capacity, the
Employee
shall be responsible generally for all aspects of such office. All terms,
conditions, rights and obligations of this Agreement shall be applicable to
any
such position as though Employee and the applicable subsidiary or affiliate
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 the applicable subsidiary or
affiliate.
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 Company, to be reviewed annually
by the Company.
5. Vacation.
Employee
shall be entitled to three (3) weeks paid vacation (selected by Employee, but
subject to the reasonable business requirements of the Company as determined
by
Employee’s supervisor) 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 Company to similar employees of the
Company.
7. Expenses.
Subject
to compliance with the Company’s policies, the Employee may incur reasonable
expenses on behalf of and in furtherance of the business of the Company. The
Company 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
Company.
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
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(c) The
existence of Cause. For purposes of this Agreement, the term “Cause” shall be
defined as:
(i) Failure
of the
Employee
to perform the duties required of the
Employee
in this Agreement in a manner satisfactory to the Company, in its sole
discretion; provided, however, that the Term of Employment shall not be
terminated pursuant to this subparagraph (i) unless the Company first gives
the Employee a written notice (“Notice of Deficiency”). The Notice of Deficiency
shall specify the deficiencies in the
Employee’s performance of the
Employee’s duties. The Employee shall have a period of thirty (30) days,
commencing on receipt of the Notice of Deficiency, in which to cure the
deficiencies contained in the Notice of Deficiency. In the event the
Employee
does not cure the deficiencies to the satisfaction of the Company, in its sole
discretion, within such thirty (30) day period (or if during such thirty (30)
day period the Company determines that the Employee is not making reasonable,
good faith efforts to cure the deficiencies to the satisfaction of the Company),
the Company shall have the right to immediately terminate the Term of
Employment. The provisions of this subparagraph (i) may be invoked by the
Company any number of times and cure of deficiencies contained in any Notice
of
Deficiency shall not be construed as a waiver of this subparagraph (i) nor
prevent the Company from issuing any subsequent Notices of Deficiency;
or
(ii) Any
dishonesty by the
Employee
in the
Employee’s dealings with the Company, 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
(iii) Any
violation of any covenant or restriction contained in Section
9, Section
10, Section
12 or
Section
14 hereof;
or
(iv) Any
violation of any material published policy of the Company or its affiliates
(material published policies include, but are not limited to, the Company’s
discrimination and harassment policy, responsible alcohol policy and xxxxxxx
xxxxxxx policy).
(d) At
the
election of the Company, upon the sale of a majority ownership interest in
the
Company or substantially all of the assets of the Company; or
(e) At
the
election of the Company, upon the determination by the Company to cease the
Company’s business operations.
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.
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.
9. Noncompetition.
(a) During
Term.
During
the Employee’s employment with the Company, the
Employee
shall not, individually or jointly with others, directly or indirectly, whether
for the
Employee’s own
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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 Company, 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 any person or entity engaged in a
restaurant business with a theme, décor, menu or style of or featured cuisine
the same as or substantially similar to that of any restaurant owned or operated
by the Company, OSI or any of their affiliates, and that is located or intended
to be located anywhere within a radius of thirty (30) miles of any restaurant
owned or operated by the Company, OSI or any of their affiliates, or any
proposed restaurant to be owned or operated by any of the foregoing, and
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. For purposes of this Section
9(b),
Restaurants owned or operated by the Company or OSI shall include restaurants
operated or owned by an affiliate of the Company or OSI, any successor entity
to
the Company or OSI, and any entity in which the Company, OSI or any of their
affiliates has an interest, including but not limited to, an interest as a
franchisor. The term “proposed restaurant” shall include all locations for which
the Company, OSI, or their franchisees or affiliates is conducting active,
bona
fide negotiations to secure a fee or leasehold interest with the intention
of
establishing a restaurant thereon.
(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 Company, 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 Company, OSI or their affiliates. Moreover, during the
Employee’s employment with the Company and for two (2) years thereafter,
Employee shall not offer employment to any employee of the Company, OSI, their
franchisees or affiliates, or otherwise solicit or induce any employee of the
Company, 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 Company, OSI, their franchisees or affiliates to terminate
their employment.
11. Company
Property: Employee Duty to Return.
All
Company 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
Company, shall
4
be
the
exclusive property of the Company and shall be returned to the Company no later
than the date of Employee’s last day of work with the Company.
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 Company (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 Company, shall be disclosed in writing promptly to the Company
and shall be the sole and exclusive property of the Company. An invention,
idea,
recipe, process, program, software or design (including an improvement) shall
be
deemed “related to the business of the Company” if (a) it was made with
equipment, supplies, facilities, or confidential information of the Company,
(b)
results from work performed by Employee for the Company, or (c) pertains to
the
current business or demonstrably anticipated research or development work of
the
Company. Employee shall cooperate with the Company 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 Company. 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 Company, 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
Company and that therefore are excluded form the scope of this
Agreement.
13. Company’s
Promise to Give Employee Trade Secrets and Training.
In
return
for Employee’s agreement not to use or disclose the Company’s trade secrets,
training, systems and confidential proprietary business methods, the Company
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,
the Company unconditionally promises to give Employee one-on-one training from
executives, trainers and senior employees of the Company or its affiliates.
Further, the training will include training and information concerning
procedures and confidential proprietary methods the Company uses to obtain
and
retain business from their customer base, operations in the Company’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 the Company develops (during
Employee’s employment with the Company) additional trade secrets, employee
surveys and analyses, financial data and other confidential proprietary business
methods and overall marketing plans and strategies, the Company 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 the Company as
Chief Financial Officer.
14. Employee’s
Promise Not to Disclose Trade Secrets and Confidential
Information. Employee
understands and agrees that the Company will provide unique and specialized
training and confidential information concerning the Company’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 the Company,
for
the Company’s sole and exclusive use, and which if used by the Company’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 Company to employ the
Employee and to enter into this
5
Agreement
with the Employee, and Employee hereby acknowledges that employment with the
Company 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 Company, whether predicated upon this Agreement or otherwise, shall
not constitute a defense to the enforcement of any restrictive covenant. The
Company has 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 Company 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 Company of any such restrictive covenant, nor shall it give
rise to any claim or cause of action by Employee against the
Company.
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
Company’s interests. Employee acknowledges that the Company is the licensee of
the Outback SteakhouseÒ
trademarks, and the licensee of the Outback SteakhouseÒ
restaurant operating system and will provide to Employee training in and
confidential information concerning the Outback SteakhouseÒ
restaurant 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 Company 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 Company 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 Company 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 Company shall be
entitled, in addition to any other rights and remedies it 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
6
the
necessity of proof of actual damages, and in the event the Company does apply
for such an injunction, Employee shall not raise as a defense thereto that
the
Company 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 Company 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 Company, any
affiliate of the Company, or any successor to the Company’s interest in the
Outback Steakhouse® 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 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 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.
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.
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27. Consent
to Personal Jurisdiction and Venue.
Employee
hereby consents to personal jurisdiction and venue, for any action brought
by
the Company 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 Company, 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 Company, their agents, or their 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.
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
all prior memoranda, correspondence, conversations, negotiations and agreements.
This Agreement may be executed in several identical counterparts that together
shall constitute but one and the same Agreement.
8
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
|
“EMPLOYEE”
|
|
| __________________________________ | /s/ Xxxx X. Walther________________ |
| Witness | XXXX X. XXXXXXX |
|
__________________________________
|
|
|
Witness
|
|
|
“COMPANY”
|
|
| Attest: | OUTBACK STEAKHOUSE INTERNATIONAL, L.P., |
| a Georgia limited partnership | |
| By: OSI INTERNATIONAL, INC., | |
| a Florida corporation, its general partner | |
| By: /s/ Xxxxxx X. Kadow__________________ | By: /s/ Xxxxxx X. Merritt_________________ |
| XXXXXX X. XXXXX, Secretary | XXXXXX X. XXXXXXX, Vice President |
9
