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WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
EXHIBIT 10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made the 20th day of October, 1998, by and between
THE TDL GROUP CO., an unlimited liability company organized under the laws of
Nova Scotia (the "Company"), and XXXXXX XXXXXXX XXXXX (the "Executive") and
WENDY'S INTERNATIONAL, INC. ("Wendy's").
WHEREAS, the Company wishes to ensure the availability of the Executive's
services for itself and for those of its affiliates which franchise, develop,
lease, sublease and/or operate Xxx Hortons retail outlets both in Canada and the
United States (collectively the "TDL Group").
WHEREAS, the Company and the Executive wish to set forth the terms and
conditions of the Executive's employment by the Company and Wendy's is a party
hereto solely for the purposes of section 5;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and
other good and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
2. Employment
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The Company agrees to employ the Executive for the Term specified in
section 2, and the Executive agrees to accept such employment, upon the
terms and conditions hereinafter set forth.
2. Term
----
Subject to the terms and conditions of this Employment Agreement, this
Employment Agreement shall be for a term commencing on the date hereof
and expiring on the close of business on June 30, 2003.
3. Duties and Responsibilities
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(a) During the Term, the Executive shall act in an advisory role
and shall generally promote the overall health and best
interests of the TDL Group both in Canada and the United
States and in connection therewith shall perform such
executive and managerial duties and responsibilities as may be
mutually agreed upon from time to time with the Chairman, the
President or the Board of Directors of the Company. The
Executive specifically agrees to offer advice about the
acquisition, development, leasing and subleasing of real
estate, to offer advice about the operation of Xxx Hortons
outlets, to participate at meetings and teleconferences and to
review budgets, when called upon to do so by the Company.
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(b) The Executive will, at all times, use all reasonable efforts
to perform his duties and responsibilities within the
parameters of the then current budget of the Company as
approved by the Board of Directors of the Company (except as
otherwise permitted by the Board of Directors) and will abide
by the policies of the TDL Group and of Wendy's and all
reasonable requests of the senior management of the Company,
Wendy's and of the Board of Directors of the Company. The
Executive shall comply and use all reasonable efforts to
ensure that the TDL Group complies on a timely basis with all
budgetary, approval and reporting requirements reasonably
requested by the TDL Group or Wendy's. In no event will the
Executive incur obligations on behalf of the TDL Group or
enter into any transaction on behalf of the TDL Group except
in accordance with the policies and internal controls of
Wendy's and the TDL Group.
(c) The Executive agrees that he will (i) devote such business
time and attention as are required to perform the functions
assigned to him; (ii) carry out his duties and work with other
employees of the TDL Group and, to the extent necessary,
employees of Wendy's, in a competent and professional manner;
and (iii) generally use his best efforts, skill and ability to
promote the best interests of the TDL Group.
(d) Each July during the Term, the Board of Directors of the
Company shall unilaterally direct the Employee to make himself
available to perform services under this Employment Agreement
for a minimum number of days (not less than 85 days and not
more than 150 days) during the subsequent twelve month period.
Notwithstanding the foregoing, the minimum number of days
shall be set at 85 days for the twelve month period ending
July 1, 1999 and 150 days for the twelve month period ending
July 1, 2000.
(e) The Executive's services shall be performed at the Company's
offices in Calgary, Canada, or such other place as the Company
and Executive shall from time to time agree, subject to
reasonably necessary travel requirements of his position and
duties hereunder.
4. Compensation
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As compensation for his services hereunder for the period ending on
June 30, 1999, the Company shall pay the Executive, as soon as
practicable after execution of this Employment Agreement, a lump sum
payment equal to the Canadian dollar equivalent of US$100,000, less
applicable withholding. As compensation for his services hereunder for
the twelve month period ending on June 30, 2000, on July 1, 1999, the
Company shall pay the Executive a lump sum payment equal to the
Canadian dollar equivalent of US$175,000, less applicable withholding.
As compensation for his services hereunder for each twelve month period
ending on June 30 in 2001, 2002 and 2003, assuming that the Company
directs the Executive to make himself available
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for 150 days for each such period, on July 1 of each such year, or on
the first business day thereafter, the Company shall pay the Executive
a lump sum payment equal to the Canadian dollar equivalent of
US$175,000, less applicable withholding. If the Company directs the
Executive to make himself available for less than 150 days for such
twelve month period, the compensation under this section shall be
prorated (but not below the Canadian dollar equivalent of US$100,000)
without regard to the number of days the Executive actually made
himself available. Notwithstanding the foregoing, the Executive may
elect in writing that the compensation for any twelve month period
shall be paid in U.S. dollars without conversion to the Canadian dollar
equivalent.
5. Termination, Confidentiality and Non-Competition
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(a) The Company shall be entitled to terminate the Term and to
discharge the Executive for "Cause" without notice, or any
payment in lieu of notice, and in such event the Executive's
right to receive any unearned, non-vested or non-accrued
compensation hereunder from the Company shall then forthwith
terminate. The term "Cause" shall have the same definition as
that set forth in the employment agreement between the
Executive, The TDL Group Ltd. and Wendy's, dated December 29,
1995; however, all references within such definition to the
duties to the Company shall refer to the Company as defined in
this Employment Agreement.
(b) Executive is and shall continue to be subject to the same
duties of confidentiality, the protection of confidential
information, non-competition, non-solicitation and loyalty to
the Company and Wendy's as those described and set forth in
section 8 of the employment agreement between the Executive,
The TDL Group Ltd. and Wendy's, dated December 29, 1995, as if
the said section 8 had been set forth in its entirety in this
Employment Agreement. All references in the said section 8 to
the duties to the Company shall mean the Company as defined in
this Employment Agreement.
6. Enforceability
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The failure of either party at any time to require performance by the
other party of any provision hereunder shall in no way affect the right
of that party thereafter to enforce the same, nor shall it affect any
other party's right to enforce the same, or to enforce any of the other
provisions in this Employment Agreement; nor shall the waiver by either
party of the breach of any provision hereof be taken or held to be a
waiver of any subsequent breach of such provision or as a waiver of the
provision itself.
7. Assignment
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This Employment Agreement is a personal contract and the Executive's
rights and obligations hereunder may not be sold, transferred,
assigned, pledged or hypothecated by the Executive. The rights and
obligations
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of the Company hereunder shall be binding upon and run in favor of the
Company; provided, however, the Company may not assign its rights and
obligations under this Employment Agreement except in connection with
the sale or transfer of all or substantially all of the Company's
business (whether by way of sale of assets, amalgamation or otherwise).
8. Modification
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This Employment Agreement may not be orally cancelled, changed,
modified or amended, and no cancellation, change, modification or
amendment shall be effective or binding, unless in writing and signed
by both parties to this Employment Agreement, and approved in writing
by the Chief Executive Officer of Wendy's.
9. Severability
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In the event any provision of this Employment Agreement is found to be
void and unenforceable by a court of competent jurisdiction, the
remaining provisions of this Employment Agreement shall nevertheless be
binding upon the parties with the same effect as though the void or
unenforceable provision had been severed and deleted. The provisions of
sections 5 and 9 shall survive termination of this Employment
Agreement.
10. Notice
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All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered by hand, sent by facsimile
transmission with confirmation of receipt requested, or sent via a
reputable international courier service with confirmation of receipt
requested, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice), and shall be
deemed given on the date on which delivered by hand or otherwise on the
date of receipt as confirmed:
If to the Executive:
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Xxxxxx X. Xxxxx
00 Xxxx Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx, X0X 0X0
Facsimile: (000) 000-0000
If to the Company:
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000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx, X0X 0X0
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with a copy to:
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Wendy's International, Inc.
X.X. Xxx 000
0000 Xxxx Xxxxxx Xxxxxxxxx Xxxx
Xxxxxx, Xxxx 00000 U.S.A.
Attention: Xxxxxxxxx X. Xxxx
Facsimile: (000) 000-0000
11. Applicable Law
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This Employment Agreement shall be governed by and construed in accordance
with the laws of the Province of Ontario (and the laws of Canada
applicable therein) without regard to their respective conflict of law
rules.
12. No Conflict
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The Executive represents and warrants that he is not subject to any
agreement, instrument, order, judgment or decree of any kind, or any
other restrictive agreement of any character, which would prevent him
from entering into this Employment Agreement or which would be breached
by the Executive upon the performance of his duties pursuant to this
Employment Agreement.
13. Entire Agreement
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This Employment Agreement represents the entire agreement between the
Company and the Executive with respect to the subject matter hereof,
and all prior agreements relating to the employment of the Executive by
the Company, written or oral, are nullified and superseded hereby.
14. Headings
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The headings contained in this Employment Agreement are for reference
purposes only, and shall not affect the meaning or interpretation of
this Employment Agreement.
IN WITNESS WHEREOF the parties have executed this Employment Agreement on and as
of the day and year first above written.
THE TDL GROUP CO.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman of the Board and
Chief Executive Officer
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SIGNED, SEALED AND DELIVERED
in the presence of:
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxxx Xxxxx
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Xxxxxx X. Xxxxxxxxx XXXXXX XXXXXXX XXXXX
ACKNOWLEDGED AND AGREED TO FOR THE
PURPOSES OF SECTION 5.
WENDY'S INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman of the Board, Chief
Executive Officer and President
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