Exhibit 10.5
EMPLOYMENT AGREEMENT
(XXXXX X. XXXXXX)
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of May 5,
2004 by and between TEXAS ROADHOUSE, INC., a Delaware corporation (the
"COMPANY"), and XXXXX X. XXXXXX, a resident of the Commonwealth of Kentucky
("EXECUTIVE").
RECITALS
A. The Company is preparing for an initial public offering (the "IPO") of
its shares of Class A Common Stock, $0.001 par value ("CLASS A COMMON STOCK"),
and has filed a Registration Statement on Form S-1 (the "REGISTRATION
STATEMENT") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended.
B. The Company has entered into an agreement to merge with Texas Roadhouse
Management Corp., a Kentucky corporation ("MANAGEMENT CORP."), has entered into
an agreement to merge with a wholly-owned subsidiary of the Company effective
immediately prior to the closing of the IPO.
C. Executive is currently employed by Management Corp. as its Chief
Financial Officer, pursuant to an Employment Agreement dated November 2002,
between Management Corp. and Executive (the "PRIOR EMPLOYMENT AGREEMENT").
D. Executive has been appointed as the Chief Financial Officer of the
Company.
E. The Company desires that the employment of Executive, and Executive
wishes such employment, as Chief Financial Officer of the Company following the
IPO, to be governed by the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements of the Company and Executive set forth below, the Company
and Executive, intending to be legally bound, agree as follows:
1. EFFECTIVE DATE. The terms and conditions of Executive's employment
hereunder shall become effective upon completion and closing of the IPO
(the "EFFECTIVE DATE"). Notwithstanding the preceding sentence, the terms
and conditions of Executive's employment hereunder shall not become
effective and this Agreement shall immediately terminate if, prior to the
Effective Date, any of the following shall occur: (a) Executive resigns
from his employment with Management Corp., (b) the death or Disability (as
defined in Section 10 hereof) of Executive, (c) the withdrawal of the
Registration Statement prior to its effectiveness, (d) if the IPO does not
close on or prior to December 31, 2004, or (e) Executive's employment is
terminated by Management Corp. Neither Executive nor the Company may revoke
or cancel this Agreement prior to the Effective Date without written
agreement of the other party.
2. EMPLOYMENT. Subject to all the terms and conditions of this
Agreement, Executive's period of employment under this Agreement shall be
the period commencing on the Effective Date and ending on the last day of
the twelfth full fiscal quarter following the Effective Date (the "THIRD
ANNIVERSARY DATE"), which initial twelve fiscal quarter term, unless
otherwise agreed to by the parties, shall be extended on the Third
Anniversary Date and on each anniversary of that date thereafter, for a
period of four fiscal quarters thereafter (which initial twelve fiscal
quarter term together with any such extensions, if any, the "TERM"), unless
the Executive's employment terminates earlier in accordance with Section 9
hereof. Thereafter, if Executive continues in the employ of the Company,
the employment relationship shall continue to be at will, terminable by
either Executive or the Company at any time and for any reason, with or
without cause, and subject to such terms and conditions established by the
Company from time to time.
3. POSITION AND DUTIES.
(a) EMPLOYMENT WITH THE COMPANY. While Executive is employed by the
Company during the Term, Executive shall be employed as the Chief Financial
Officer of the Company, and such other titles as the Company may designate,
and shall perform such duties and responsibilities as the Company shall
assign to him from time to time, including duties and responsibilities
relating to the Company's wholly-owned and partially owned subsidiaries and
other affiliates.
(b) PERFORMANCE OF DUTIES AND RESPONSIBILITIES. Executive shall serve
the Company faithfully and to the best of his ability and shall devote his
full working time, attention and efforts to the business of the Company
during his employment with the Company hereunder. While Executive is
employed by the Company during the Term, Executive shall report to the
Chief Executive Officer of the Company or to such other person as
designated by the Board of Directors of the Company (the "BOARD").
Executive hereby represents and confirms that he is under no contractual or
legal commitments that would prevent him from fulfilling his duties and
responsibilities as set forth in this Agreement. During his employment with
the Company, Executive shall not accept other employment or engage in other
material business activity, except as approved in writing by the Board.
Executive may participate in charitable activities and personal investment
activities to a reasonable extent, and he may serve as a director of
business organizations as approved by the Board, so long as such activities
and directorships do not interfere with the performance of his duties and
responsibilities hereunder.
4. COMPENSATION.
(a) BASE SALARY. While Executive is employed by the Company during the
Term, the Company shall pay to Executive a base salary at the rate of Two
Hundred Ten Thousand and no/100 Dollars ($210,000.00) per fiscal year, less
deductions and withholdings, which base salary shall be paid in accordance
with the Company's normal payroll policies and procedures. The Executive's
base salary may be reviewed by the
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Compensation Committee of the Board on or after September 30, 2005, and
annually thereafter, to determine whether it should be increased.
(b) INCENTIVE BONUS. Commencing with the first full fiscal quarter
following the Effective Date and for each full fiscal quarter thereafter
that Executive is employed by the Company during the Term, Executive shall
be eligible for a quarterly incentive bonus in an amount up to Twenty Eight
Thousand Seven Hundred Fifty and no/100 Dollars ($28,750.00), based upon
achievement of defined goals established by the Compensation Committee of
the Board and in accordance with the terms of any incentive plan of the
Company in effect from time to time (the "INCENTIVE BONUS"). The level of
achievement of the objectives each fiscal quarter and the amount payable as
Incentive Bonus shall be determined in good faith by the Compensation
Committee. Any Incentive Bonus earned for a fiscal quarter shall be paid to
Executive on or before the 90th day following the last day of such fiscal
quarter. The amount of the Executive's quarterly incentive bonus may be
reviewed by the Compensation Committee of the Board on or after September
30, 2005, and annually thereafter, to determine whether it should be
increased.
(c) STOCK OPTIONS.
(i) Pursuant to the 2004 Equity Incentive Plan of the Company, as
of the Effective Date, Executive shall be granted options (the
"OPTIONS") to purchase 50,000 shares of Class A Common Stock at an
exercise price equal to the price per share at which shares of Class A
Common Stock are offered to the public in the IPO.
(ii) The Options shall vest in accordance with the following
schedule:
DATE AMOUNT VESTING
----- --------------
First Anniversary of the Effective Date.. None
Second Anniversary of Effective Date .... 10,000 shares
Third Anniversary of Effective Date ..... 40,000 shares
(iii) If a share dividend, share split or share combination shall
occur with respect to the Common Shares of Texas Roadhouse Holdings
LLC, a
Kentucky limited liability company, shall occur prior to the
closing of the IPO, or such Common Shares are exchanged for shares of
Class A Common Stock in connection with the IPO on a basis other than
one-to-one, the amounts set forth in this Section 4(c) shall be
correspondingly adjusted.
(iv) In the event of a termination of Executive's Employment
other than for Cause (as defined below) or termination by Executive
for Good Reason (as defined below) within 12 months following a Change
of Control (as defined below), or prior to a Change of Control at the
direction of a person who
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has entered into an agreement with the Company, the consummation of
which will constitute a Change of Control, and contingent upon
Executive's compliance with Section 10(g), the Options and all other
options granted under any stock option and stock incentive plans of
the Company that are outstanding as of the date of termination shall
become immediately exercisable in full and shall remain exercisable
until the earlier of (A) two years after termination of Executive's
employment by the Company or (B) the option expiration date as set
forth in the applicable option agreement.
(v) A "CHANGE OF CONTROL" shall mean that one of the following
events has taken place at any time during the Term:
(A) The stockholders of the Company approve one of the
following:
(I) Any merger or statutory plan of exchange involving
the Company ("MERGER") in which the Company is not the
continuing or surviving corporation or pursuant to which the
Common Stock, $0.001 par value ("COMMON STOCK") would be
converted into cash, securities or other property, other
than a Merger involving the Company in which the holders of
Common Stock immediately prior to the Merger have
substantially the same proportionate ownership of common
stock of the surviving corporation after the Merger; or
(II) Any sale, lease, exchange, or other transfer (in
one transaction or a series of related transactions) of all
or substantially all of the assets of the Company or the
adoption of any plan or proposal for the liquidation or
dissolution;
B) During any period of 12 months or less, individuals who
at the beginning of such period constituted a majority of the
Board of Directors cease for any reason to constitute a majority
thereof unless the nomination or election of such new directors
was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such
period; or
C) A tender or exchange offer, other than one made by:
(I) the Company, or by
(II) W. Xxxx Xxxxxx or any corporation, limited
liability company, partnership, or other entity in which W.
Xxxx Xxxxxx (x) owns a direct or indirect ownership of 50%
or more or (y) controls 50% or more of the voting power
(collectively, the "XXXXXX PARTIES")
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is made for the Common Stock (or securities convertible into
Common Stock) and such offer results in a portion of those
securities being purchased and the offeror after the consummation
of the offer is the beneficial owner (as determined pursuant to
Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")), directly or indirectly, of securities
representing at least 20 percent of the voting power of
outstanding securities of the Company; or
(D) the Company receives a report on Schedule 13D of the
Exchange Act reporting the beneficial ownership by any person
other than a Xxxxxx Party of securities representing 20 percent
or more of the voting power of outstanding securities of the
Company, except that if such receipt shall occur during a tender
offer or exchange offer described in (C) above, a Change of
Control shall not take place until the conclusion of such offer.
Notwithstanding anything in the foregoing to the contrary, no
Change of Control shall be deemed to have occurred for purposes of
this Agreement by virtue of any transaction which results in
Executive, or a group of persons which includes Executive, acquiring,
directly or indirectly, securities representing 20 percent or more of
the voting power of outstanding securities of the Company.
vi) A termination by Executive for "Good Reason" shall mean a
termination based on:
(A) the assignment of Executive a different title or job
responsibilities that result in a substantial decrease in the
level of responsibility from those in effect immediately prior to
the Change of Control;
(B) a reduction by the Company or the surviving company in
Executive's base pay as in effect immediately prior to the Change
of Control;
(C) a significant reduction by the Company or the surviving
company in total benefits available to Executive under cash
incentive, stock incentive and other employee benefit plans after
the Change of Control compared to the total package of such
benefits as in effect prior to the Change of Control;
(D) the requirement by the Company or the surviving company
that Executive be based more than 50 miles from where Executive's
office is located immediately prior to the Change of Control,
except for required travel on company business to an extent
substantially consistent with the business travel obligations
which Executive undertook on behalf of the Company prior to the
Change of Control; or
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(E) the failure by the Company to obtain from any successor
(whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or
assets of the Company ("SUCCESSOR") the assent to this Agreement
contemplated by Section 13(g) hereof.
(d) BENEFITS. While Executive is employed by the Company during
the Term, Executive shall be entitled to participate in all employee
benefit plans and programs of the Company that are available to
executive officers generally to the extent that Executive meets the
eligibility requirements for each individual plan or program. The
Company provides no assurance as to the adoption or continuance of any
particular employee benefit plan or program, and Executive's
participation in any such plan or program shall be subject to the
provisions, rules and regulations applicable thereto.
(e) EXPENSES. While Executive is employed by the Company during
the Term, the Company shall reimburse Executive for all reasonable and
necessary out-of-pocket business, travel and entertainment expenses
incurred by him in the performance of his duties and responsibilities
hereunder, subject to the Company's normal policies and procedures for
expense verification and documentation.
(f) VACATIONS AND HOLIDAYS. Executive shall be entitled to be
absent from his duties for the Company by reason of vacation for a
period of three weeks per calendar year. Executive shall coordinate
his vacation schedule with the Company so as not to impose an undue
burden on the Company. In addition, Executive shall be entitled to
such national and religious holidays as the Board shall approve for
all of its employees from time to time.
5. AFFILIATED ENTITIES. As used in Sections 6, 7 and 8 of this
Agreement, "COMPANY" shall include the Company and each corporation,
limited liability company, partnership, or other entity that is controlled
by the Company, or is under common control with the Company (in each case
"control" meaning the direct or indirect ownership of 50% or more of all
outstanding equity interests).
6. CONFIDENTIAL INFORMATION. Except as required in the performance of
Executive's duties as an employee of the Company or as authorized in
writing by the Board, Executive shall not, either during Executive's
employment with the Company or at any time thereafter, use, disclose or
make accessible to any person any confidential information for any purpose.
"CONFIDENTIAL INFORMATION" means information proprietary to the Company or
its suppliers or prospective suppliers and not generally known (including
trade secret information) about the Company's suppliers, products,
services, personnel, customers, recipes, pricing, sales strategies,
technology, computer software code, methods, processes, designs, research,
development systems, techniques, finances, accounting, purchasing, and
plans. All information disclosed to Executive or to which Executive obtains
access, whether originated by Executive or by others, during the period of
Executive's employment by the Company (whether before, during, or after the
Term), shall be presumed to be Confidential Information if it is treated by
the Company as being
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Confidential Information or if Executive has a reasonable basis to believe
it to be Confidential Information. Executive acknowledges that the
above-described knowledge and information constitutes a unique and valuable
asset of the Company and represents a substantial investment of time and
expense by the Company, and that any disclosure or other use of such
knowledge or information other than for the sole benefit of the Company
would be wrongful and would cause irreparable harm to the Company. During
Executive's employment with the Company, Executive shall refrain from
committing any acts that would materially reduce the value of such
knowledge or information to the Company. The foregoing obligations of
confidentiality shall not apply to any knowledge or information that (i) is
now or subsequently becomes generally publicly known, or (ii) is required
to be disclosed by law or legal process, other than as a direct or indirect
result of the breach of this Agreement by Executive. Executive acknowledges
that the obligations imposed by this Section 6 are in addition to, and not
in place of, any obligations imposed by applicable statutory or common law.
7. NONCOMPETITION COVENANT.
(a) AGREEMENT NOT TO COMPETE. During Executive's employment with the
Company (whether before, during, or after the Term) and during the
Restricted Period (as defined below), Executive shall not, directly or
indirectly, on his own behalf or on behalf of any person or entity other
than the Company, including without limitation as a proprietor, principal,
agent, partner, officer, director, stockholder, employee, member of any
association, consultant or otherwise, engage in any business that is
directly competitive with the business of the Company, including without
limitation any business that operates one or more full-service, casual
dining steakhouse restaurants. The provisions of this Section 7(a) shall
also apply to any business which is directly competitive with any other
business which the Company acquires or develops during Executive's
employment with the Company.
(b) AGREEMENT NOT TO HIRE. Except as required in the performance of
Executive's duties as an employee of the Company, during Executive's
employment with the Company (whether before, during, or after the Term) and
during the Restricted Period, Executive shall not, directly or indirectly,
hire, engage or solicit or induce or attempt to induce to cease working for
the Company, any person who is then an employee of the Company or who was
an employee of the Company during the six (6) month period immediately
preceding Executive's termination of employment with the Company.
(c) AGREEMENT NOT TO SOLICIT. Except as required in the performance of
Executive's duties as an employee of the Company, during Executive's
employment with the Company (whether before, during, or after the Term) and
during the Restricted Period, Executive shall not, directly or indirectly,
solicit, request, advise, induce or attempt to induce any vendor, supplier
or other business contact of the Company to cancel, curtail, cease doing
business with, or otherwise adversely change its relationship with the
Company.
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(d) RESTRICTED PERIOD. "RESTRICTED PERIOD" hereunder means the period
commencing on the last day of Executive's employment with the Company and
ending on the date that is two years following the last day of the Term.
(e) ACKNOWLEDGMENT. Executive hereby acknowledges that the provisions
of this Section 7 are reasonable and necessary to protect the legitimate
interests of the Company and that any violation of this Section 7 by
Executive shall cause substantial and irreparable harm to the Company to
such an extent that monetary damages alone would be an inadequate remedy
therefor. Therefore, in the event that Executive violates any provision of
this Section 7, the Company shall be entitled to an injunction, in addition
to all the other remedies it may have, restraining Executive from violating
or continuing to violate such provision.
(f) BLUE PENCIL DOCTRINE. If the duration of, the scope of or any
business activity covered by any provision of this Section 7 is in excess
of what is determined to be valid and enforceable under applicable law,
such provision shall be construed to cover only that duration, scope or
activity that is determined to be valid and enforceable. Executive hereby
acknowledges that this Section 7 shall be given the construction that
renders its provisions valid and enforceable to the maximum extent, not
exceeding its express terms, possible under applicable law.
(g) PERMITTED EQUITY OWNERSHIP. Ownership by Executive, as a passive
investment, of less than 2.5% of the outstanding shares of capital stock of
any corporation listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this
Section 7.
8. INTELLECTUAL PROPERTY.
(a) DISCLOSURE AND ASSIGNMENT. As of the Effective Date, Executive
hereby transfers and assigns to the Company (or its designee) all right,
title, and interest of Executive in and to every idea, concept,
invention, and improvement (whether patented, patentable or not)
conceived or reduced to practice by Executive whether solely or in
collaboration with others while he is employed by the Company, and all
copyrighted or copyrightable matter created by Executive whether solely
or in collaboration with others while he is employed by the Company that
relates to the Company's business (collectively, "CREATIONS"). Executive
shall communicate promptly and disclose to the Company, in such form as
the Company may request, all information, details, and data pertaining
to each Creation. Every copyrightable Creation, regardless of whether
copyright protection is sought or preserved by the Company, shall be a
"work made for hire" as defined in 17 U.S.C. Section 101, and the
Company shall own all rights in and to such matter throughout the world,
without the payment of any royalty or other consideration to Executive
or anyone claiming through Executive.
(b) TRADEMARKS. All right, title, and interest in and to any and all
trademarks, trade names, service marks, and logos adopted, used, or
considered for use by the Company during Executive's employment (whether or
not developed by
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Executive) to identify the Company's business or other goods or services
(collectively, the "MARKS"), together with the goodwill appurtenant
thereto, and all other materials, ideas, or other property conceived,
created, developed, adopted, or improved by Executive solely or jointly
during Executive's employment by the Company and relating to its business
shall be owned exclusively by the Company. Executive shall not have, and
will not claim to have, any right, title, or interest of any kind in or to
the Marks or such other property.
(c) DOCUMENTATION. Executive shall execute and deliver to the Company
such formal transfers and assignments and such other documents as the
Company may request to permit the Company (or its designee) to file and
prosecute such registration applications and other documents it deems
useful to protect or enforce its rights hereunder. Any idea, invention,
copyrightable matter, or other property relating to the Company's business
and disclosed by Executive prior to the first anniversary of the effective
date of Executive's termination of employment shall be deemed to be
governed by the terms of this Section 8 unless proven by Executive to have
been first conceived and made after such termination date.
(d) NON-APPLICABILITY. Executive is hereby notified that this Section
8 does not apply to any invention for which no equipment, supplies,
facility, Confidential Information, or other trade secret information of
the Company was used and which was developed entirely on Executive's own
time, unless (i) the invention relates (A) directly to the business of the
Company or (B) to the Company's actual or demonstrably anticipated research
or development, or (ii) the invention results from any work performed by
Executive for the Company.
9. TERMINATION OF EMPLOYMENT.
(a) Executive's employment with the Company shall terminate
immediately upon:
(i) Executive's receipt of written notice from the Company of the
termination of his employment;
(ii) the Company's receipt of Executive's written resignation
from the Company;
(iii) Executive's Disability (as defined below); or
(iv) Executive's death.
(b) The date upon which Executive's termination of employment with the
Company occurs shall be the "TERMINATION DATE."
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10. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) If Executive's employment with the Company is terminated by reason
of:
(i) Executive's abandonment of his employment or Executive's
resignation for any reason (whether or not such resignation is set
forth in writing or otherwise communicated to the Company);
(ii) termination of Executive's employment by the Company for
Cause (as defined below); or
(iii) termination of Executive's employment by the Company
without Cause following expiration of the Term; or
the Company shall pay to Executive his then-current base salary through the
Termination Date.
(b) If Executive's employment with the Company is terminated by the
Company effective prior to the expiration of the Term for any reason other
than for Cause (as defined below), then the Company shall pay to Executive,
subject to Section 10(i) of this Agreement:
(i) his then-current base salary through the Termination Date;
(ii) any earned and unpaid annual Incentive Bonus for the fiscal
quarter immediately preceding the fiscal quarter in which the
Termination Date occurs;
(iii) the amount of his then current base salary that Executive
would have received from the Termination Date through the date that
is 180 days following such Termination Date; and
(iv) 50% of the aggregate quarterly Incentive Bonus earned by
Executive for the last four full fiscal quarters immediately preceding
the fiscal quarter in which the Termination Date occurs.
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Any amount payable to Executive pursuant to Section 10(b)(iii) shall be
subject to deductions and withholdings and shall be paid to Executive by
the Company in the same periodic installments in accordance with the
Company's regular payroll practices commencing on the first normal payroll
date of the Company following the expiration of all applicable rescission
periods provided by law. Any amount payable to Executive pursuant to
Section 10(b)(ii) shall be paid to Executive by the Company in the same
manner and at the same time that Incentive Bonus payments are made to
current employees of the Company, but no earlier than the first normal
payroll date of the Company following the expiration of all applicable
rescission periods provided by law. Any amount payable to Executive
pursuant to Section 10(b)(iv) shall be paid to Executive by the Company on
the same date as any payment would be made pursuant to Section 10(b)(ii) if
Executive were entitled to such payment.
(c) If Executive's employment with the Company is terminated effective
prior to the expiration of the Term by reason of Executive's death or
Disability, the Company shall pay to Executive or his beneficiary or his
estate, as the case may be, his then-current base salary through the
Termination Date, any earned and unpaid quarterly Incentive Bonus for the
fiscal quarter preceding the fiscal quarter in which the Termination Date
occurs and a pro-rated portion of any quarterly Incentive Bonus for the
fiscal quarter in which the Termination Date occurs, based on the number of
days during such fiscal quarter that Executive was employed by the Company,
payable in the same manner and at the same time that Incentive Bonus
payments are made to current employees of the Company.
(d) Cause. "CAUSE" hereunder shall mean:
(i) an act or acts of dishonesty undertaken by Executive and
intended to result in substantial gain or personal enrichment of
Executive at the expense of the Company;
(ii) unlawful conduct or gross misconduct that is willful and
deliberate on Executive's part and that, in either event, is
materially injurious to the Company;
(iii) the conviction of Executive of a felony;
(iv) material and deliberate failure of Executive to perform his
duties and responsibilities hereunder or to satisfy his obligations as
an officer or employee of the Company, which failure has not been
cured by Executive within ten days after written notice thereof to
Executive from the Company; or
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(v) material breach of any terms and conditions of this Agreement
by Executive not caused by the Company, which breach has not been
cured by Executive within ten days after written notice thereof to
Executive from the Company.
(e) "DISABILITY" hereunder shall mean the inability of Executive to
perform on a full-time basis the duties and responsibilities of his
employment with the Company by reason of his illness or other physical or
mental impairment or condition, if such inability continues for an
uninterrupted period of 45 days or more during any 360-day period. A period
of inability shall be "uninterrupted" unless and until Executive returns to
full-time work for a continuous period of at least 30 days.
(f) In the event of termination of Executive's employment, the sole
obligation of the Company hereunder shall be its obligation to make the
payments called for by Sections 10(a), 10(b), or 10(c) hereof, as the case
may be, and the Company shall have no other obligation to Executive or to
his beneficiary or his estate, except as otherwise provided by law.
(g) Notwithstanding any other provision hereof, the Company shall not
be obligated to make any payments under Section 10(b)(ii), (iii) or (iv) of
this Agreement unless Executive has signed a full release of claims against
the Company, in a form and scope to be prescribed by the Board, all
applicable consideration periods and rescission periods provided by law
shall have expired, and Executive is in strict compliance with the terms of
this Agreement as of the dates of the payments.
11. RETURN OF PROPERTY. Upon termination of Executive's employment
with the Company, Executive shall deliver promptly to the Company all
records, files, manuals, books, forms, documents, letters, memoranda, data,
customer lists, tables, photographs, video tapes, audio tapes, computer
disks and other computer storage media, and copies thereof, that are the
property of the Company, or that relate in any way to the business,
products, services, personnel, customers, prospective customers, suppliers,
practices, or techniques of the Company, and all other property of the
Company (such as, for example, computers, cellular telephones, pagers,
credit cards, and keys), whether or not containing Confidential
Information, that are in Executive's possession or under Executive's
control.
12. REMEDIES. Executive acknowledges that it would be difficult to
fully compensate the Company for monetary damages resulting from any breach
by him of the provisions of Sections 6, 7, and 8 hereof. Accordingly, in
the event of any actual or threatened breach of any such provisions, the
Company shall, in addition to any other remedies it may have, be entitled
to injunctive and other equitable relief to enforce such provisions, and
such relief may be granted without the necessity of proving actual monetary
damages.
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13. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by, subject to,
and construed in accordance with the laws of the Commonwealth of
Kentucky
without regard to conflict of law principles. Any action relating to this
Agreement shall only be brought in a court of competent jurisdiction in the
Commonwealth of
Kentucky, and the parties consent to the jurisdiction,
venue and convenience of such courts.
(b) JURISDICTION AND LAW. Executive and the Company consent to
jurisdiction of the courts of the Commonwealth of
Kentucky and/or the
federal district courts, Western District of
Kentucky, for the purpose of
resolving all issues of law, equity, or fact, arising out of or in
connection with this Agreement. Any action involving claims of a breach of
this Agreement shall be brought in such courts. Each party consents to
personal jurisdiction over such party in the state and/or federal courts of
Kentucky and hereby waives any defense of lack of personal jurisdiction or
FORUM NON CONVENIENS. Venue, for the purpose of all such suits, shall be in
Jefferson County, Commonwealth of
Kentucky.
(c) ENTIRE AGREEMENT. Except for any written stock option agreement
and related agreements between Executive and the Company, this Agreement
contains the entire agreement of the parties relating to Executive's
employment with the Company and supersedes all prior agreements and
understandings with respect to such subject matter including without
limitation the Prior
Employment Agreement, and the parties hereto have made
no agreements, representations or warranties relating to the subject matter
of this Agreement that are not set forth herein. As of the Effective Date,
the Prior
Employment Agreement shall terminate and be of no further force
or effect; provided, however, any obligations of Executive or the Company
arising under the Prior
Employment Agreement prior to the Effective Date
shall survive such termination.
(d) NO VIOLATION OF OTHER AGREEMENTS. Executive hereby represents and
agrees that neither (i) Executive's entering into this Agreement, (ii)
Executive's employment with the Company, nor (iii) Executive's carrying out
the provisions of this Agreement, will violate any other agreement (oral,
written or other) to which Executive is a party or by which Executive is
bound.
(e) AMENDMENTS. No amendment or modification of this Agreement shall
be deemed effective unless made in writing and signed by the parties
hereto.
(f) NO WAIVER. No term or condition of this Agreement shall be deemed
to have been waived, except by a statement in writing signed by the party
against whom enforcement of the waiver is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically stated, shall operate
only as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other than
that specifically waived.
(g) ASSIGNMENT. This Agreement shall not be assignable, in whole or in
part, by either party without the prior written consent of the other party,
except that the
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Company may, without the consent of Executive, assign its rights and
obligations under this Agreement (i) to any entity with which the Company
may merge or consolidate, or (ii) to any corporation or other person or
business entity to which the Company may sell or transfer all or
substantially all of its assets. Upon Executive's written request, the
Company will seek to have any Successor by agreement assent to the
fulfillment by the Company of its obligations under this Agreement. After
any assignment by the Company pursuant to this Section 13(g), the Company
shall be discharged from all further liability hereunder and such assignee
shall thereafter be deemed to be the "Company" for purposes of all terms
and conditions of this Agreement, including this Section 13.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
(i) SEVERABILITY. Subject to Section 7(f) hereof, to the extent that
any portion of any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of
such provision and of this Agreement shall be unaffected and shall continue
in full force and effect.
(j) SURVIVAL. The terms and conditions set forth in Sections 5, 6, 7,
8, 9, 11, 12, and 13 of this Agreement, and any other provision that
continues by its terms, shall survive expiration of the Term or termination
of Executive's employment for any reason.
(k) CAPTIONS AND HEADINGS. The captions and paragraph headings used in
this Agreement are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement or any of the
provisions hereof.
(l) NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and either delivered in person
or sent by first class certified or registered mail, postage prepaid, if to
the Company, at the Company's principal place of business, and if to
Executive, at his home address most recently filed with the Company, or to
such other address or addresses as either party shall have designated in
writing to the other party hereto.
* * * * *
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Executive and the Company have executed this Agreement
as of the date set forth in the first paragraph.
TEXAS ROADHOUSE, INC.
By: /S/ XXXXXX X. XXXX
----------------------------------------
Xxxxxx X. Xxxx, Chief Executive Officer
XXXXX X. XXXXXX
/S/ XXXXX X. XXXXXX
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