AGREEMENT REGARDING EMPLOYMENT
This Agreement ("Agreement") is made and entered into by and between
XXXXXXXX'X INTERNATIONAL, INC. ("Applebee's") and Xxxxx Xxxxxxx ("Xxxxxxx"),
collectively referred to in this Agreement as "the Parties."
WHEREAS, through no fault of Applebee's or of Xxxxxxx, Xxxxxxx has
voluntarily decided to resign her employment effective August 17, 2001
WHEREAS, Applebee's and Xxxxxxx wish to settle any disputes and claims
which exist between them, or which could exist between them, arising from
Xxxxxxx'x employment with Applebee's; and
NOW, THEREFORE, in consideration of the mutual promises, agreements and
releases contained in this Agreement, the parties agree as follows:
X. Xxxxxxxx'x Agreements:
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In exchange for Xxxxxxx'x promises and covenants contained herein,
including but not limited to Xxxxxxx'x agreement to continue her active
employment through August 17, 2001, Applebee's agrees to the following:
1. Salary Continuation: Continuation of current salary at the annual
rate of $330,000, less applicable withholding, including federal, state,
and local taxes and F.I.C.A. through December 31, 2001. Xxxxxxx will be
granted a special $100,000 cash bonus (subject to taxes) if she resigns
effective August 17, 2001. This money will be paid at the next normal pay
period after that date.
2. Benefit Coverage: Xxxxxxx'x standard benefits, including her
executive physical, will continue until she is eligible for similar
benefits with another employer, but in no case past December 31, 2001.
3. 2001 Bonus: Xxxxxxx will be entitled to receive her 2001 85% of
base salary bonus at the normal distribution date with the calculation as
follows: a) 70% based on the company's actual performance against the 5 key
metrics and b) the remaining 30% assuming she would earn target (100%) on
her individual objectives.
4. Appointment as Director of Applebee's of Arizona: Simultaneous with
the Agreement taking effect in accordance with Paragraph G herein, Xxxxxxx
shall be appointed to the Board of Directors of Applebee's of Arizona,
provided that she may be required to resign from such position at the
direction of the CEO or Chief People Officer of Xxxxxxxx'x International,
Inc.
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5. Stock Options/Restricted Shares: Vesting of October 5, 2001 stock
options of 5,315 Incentive Stock Options, 19,685 Non-Qualified Stock
Options, and 1,666 restricted shares. The vesting of all other option
grants shall be governed by the terms and conditions of the grant
agreements previously issued.
X. Xxxxxxx'x Agreements:
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1. Full and General Release of Liability:
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In exchange for the consideration and covenants of Applebee's, the
sufficiency of which Xxxxxxx acknowledges, Xxxxxxx hereby releases
Applebee's and its past and present officers, directors, employees, agents,
external consultants, insurers, successors, franchisees, and all affiliated
companies (collectively, the "Applebee's Affiliates") from any and all
claims and demands of any kind known or unknown which Xxxxxxx may have
against Applebee's or the Applebee's Affiliates up to and as of the date
Xxxxxxx signs this Agreement, or which Xxxxxxx may have had at any time
before the date of signing. Xxxxxxx understands that Xxxxxxx is releasing
Applebee's and the Applebee's Affiliates, to the maximum extent permissible
by law, from any liability which Xxxxxxx believes Applebee's may have had
to Xxxxxxx at any time up to and including the date Xxxxxxx signs this
Agreement. This release includes a waiver (a giving up of) any legal rights
or claims Xxxxxxx may have or may have had, including but not limited to
claims of race, color, national origin, sex or gender, age, religious,
disability discrimination, harassment or retaliation arising under Title
VII of the Civil Rights Act of 1964, as amended, the Rehabilitation Act of
1973, the Civil Rights Act of 1866 (Section 1981), the Americans with
Disabilities Act of 1990, the Age Discrimination in Employment Act
("ADEA"), any violation of the Employee Retirement Income Security Act of
1974, the Fair Labor Standards Act, the Equal Pay Act, the Family and
Medical Leave Act of 1993, the Occupational Safety and Health Act, the
Kansas Act Against Discrimination and Kansas Age Discrimination in
Employment Act, any applicable state or local anti-discrimination statute
or law, and all claims arising under any other federal, state or local
statute, regulation, ordinance, or the common law of any state, including
any and all claims in tort or contract. Furthermore, Xxxxxxx specifically
represents and warrants that at the time of executing this "Agreement, she
is unaware of any work-related injury or illness. Xxxxxxx further
represents and warrants that at the time of executing this Agreement she
has not engaged in any "protected activity" for purposes of federal, state
or local law.
2. Resignation of Employment:
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Xxxxxxx agrees she will voluntarily submit her resignation from
employment effective August 17, 2001. Xxxxxxx agrees that all statements
regarding the reasons for her resignation will be in substantial accordance
with Xxxxxxx and Applebee's agreed-upon joint statement attached as Exhibit
A and incorporated by reference. Xxxxxxx agrees she will not announce any
new position or employer prior to August 5, 2001.
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3. Non-Solicitation Agreement:
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(a) Acknowledgments. Xxxxxxx acknowledges that Applebee's and
Applebee's Affiliate's relationships with its employees, contractors,
consultants and other business associations are among Applebee's most
important assets, and that developing, maintaining and continuing to
maintain these relationships is one of Applebee's highest priorities.
Xxxxxxx further understands that she will be relied upon to maintain the
goodwill of these relationships on behalf of Applebee's during the period
in which she receives payments and benefits pursuant to section A of this
Agreement.
(b) Non-Solicitation of Employees. Xxxxxxx agrees that during the
period through December 31, 2002, she will not recruit, solicit, induce,
attempt to induce, or encourage others to recruit, solicit, or induce on
her behalf, any employees, contractors, consultants and other business
associates of Applebee's or any Applebee's Affiliate including but not
limited to any Applebee's Franchisee, to terminate their employment with,
or otherwise cease the relationship with, Applebee's or such Affiliate or
Franchisee. Xxxxxxx further agrees that if any employees, contractors,
consultants, or other business associates of Applebee's or any Applebee's
affiliate including, but not limited to, any Applebee's franchisees,
approach her about or seek to discuss employment with her during the time
period through December 31, 2002, she will refrain from entering into any
such discussion and/or making offers of employment, either formally or
informally, without first giving notice to Applebee's CEO or CPO in writing
of that employee's expression of interest and allowing Applebee's two (2)
business days after such notification to talk to such person before Xxxxxxx
proceeds to either discuss or make any offer of employment.
(c) Legal and Equitable Relief. The restrictions contained in
paragraph 3.(b) are necessary for the protection of the legitimate business
interests and goodwill of Applebee's, and are considered by Xxxxxxx to be
reasonable for such purposes. Xxxxxxx agrees that any breach of paragraph
3.(b) could cause Applebee's substantial and irrevocable damage. In the
event of any such breach, in addition to such other remedies that may be
available, including the recovery of damages from Xxxxxxx, Applebee's shall
have the right to seek injunctive relief to restrain or enjoin any actual
or threatened breach of the provisions of paragraph 4.(b). If Applebee's
prevails in a legal proceeding to remedy a breach or threatened breach of
this Agreement, Applebee's shall be entitled to receive reasonable
attorneys' fees, expert witness fees, and out-of-pocket costs incurred in
connection with such proceeding, in addition to any other relief it may be
granted. If Xxxxxxx prevails in any such action instituted by Applebee's,
she shall be entitled to receive reasonable attorneys' fees, expert witness
fees, and out-of-pocket costs incurred in connection with such proceeding,
in addition to any other relief she may be granted.
Provided Xxxxxxx fulfills her obligations set forth in paragraphs
3 (a) and 3 (b), Applebee's agrees to pay Xxxxxxx, no later than January
30, 2003, the total gross amount of One Hundred Thousand Dollars and No/100
($100,000) less applicable withholding, including but not necessarily
limited to federal and state taxes.
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4. Non-Competition Agreement:
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Xxxxxxx agrees that during the period through December 31, 2002,
Xxxxxxx will not compete either directly or indirectly, either as an
employee, owner, officer, director, consultant, stockholder or partner in
the following competitive enterprises: Xxxxxxx Int'l and TGI Fridays..
5. Adequacy of Consideration:
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Xxxxxxx acknowledges that the amounts and/or benefits provided by
Applebee's under this Agreement are adequate consideration for Xxxxxxx'x
execution of this Agreement, and further acknowledges that the amounts
and/or benefits provided is in excess of anything of value to which Xxxxxxx
may otherwise be entitled under existing policies or practices of
Applebee's.
C. Non-Disparagement:
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Xxxxxxx agrees that she will refrain from making disparaging or critical
statements of any nature whatsoever about Applebee's and/or any Applebee's
Franchisees or Affiliates. Similarly, Applebee's agrees that its Senior
Executive Team and Board of Directors will refrain from making disparaging or
critical statements of any nature whatsoever about Xxxxxxx. Any breach of this
agreement will entitle the aggrieved party to seek all remedies allowed by law ,
and the prevailing party, in addition to damages, will be entitled to recover
all attorneys fees, expenses and costs. The parties agree that all statements
regarding Xxxxxxx'x employment with Applebee's will be in substantial accord
with the statements in Exhibit A attached hereto and incorporated by reference.
The parties agree and acknowledge that any violation of or failure to perform
the agreements set forth in this section shall constitute a material breach of
this Agreement.
D. Trade Secrets
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Xxxxxxx agrees that she has been employed in a supervisory/managerial
capacity and in such capacity has access to information and materials which
constitute trade secrets and confidential and proprietary information. She,
therefore, agrees that except for knowledge or information that she gained prior
to her employment with Applebee's, she will not at any time (i) appropriate or
use the trade secrets for use in any business which is not a part of Applebee's;
(ii) acquire any right to use, or to license or franchise the use of any name,
xxxx or other intellectual property right which is or may be granted by any
franchise agreement between Applebee's and any franchisee; or (iii) communicate,
divulge or use for the benefit of any other person or entity any confidential
information, knowledge or know-how concerning the methods of development or
operation of a Restaurant which have been communicated to Xxxxxxx or of which
Xxxxxxx has been apprised by virtue of Applebee's employment by Xxxxxxx. Any and
all information, knowledge, and know-how, including, without limitation,
drawings, materials, equipment, specifications, techniques and other data, which
Applebee's has designated as confidential, shall be deemed confidential for
purposes of this Agreement. Xxxxxxx further acknowledges and agrees that the
Franchise Operations Manual and any other materials and manuals provided or made
available to franchisees of Applebee's and Applebee's employees involved with
said franchisees (collectively, the "Manuals") may not be reproduced, in whole
or in part, without the written consent of Applebee's. Xxxxxxx agrees to
surrender to Applebee's each and every copy of the Manuals and any other
confidential information or material in her possession or control upon the
execution of this Agreement.
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E. Confidentiality Agreement:
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(a)Xxxxxxx agrees to keep confidential the existence, terms and contents of
this Agreement, other than to her spouse, attorney, tax preparer (all of whom
shall also agree to maintain confidentiality), and, to the extent required,
governmental taxing authorities, or if compelled by a court of competent
jurisdiction or otherwise required by law (collectively, "Authorized Persons").
Xxxxxxx further agrees to keep confidential and not to disclose the facts,
events and/or circumstances giving rise to this Agreement, unless compelled by a
court of competent jurisdiction or otherwise required by law.
Xxxxxxx expressly agrees and understands that any breach of the
confidentiality provisions of this Agreement by her is a material breach of this
Agreement. In the event of Xxxxxxx'x breach of confidentiality provisions,
Xxxxxxx acknowledges and agrees, Applebee's will be entitled to seek to recover
from Xxxxxxx any payments made to Xxxxxxx, to the extent permitted by law.
(b) Applebee's and its Affiliates agree to keep the contents of this
Agreement confidential and not to disclose the terms or conditions of this
Agreement to any person other than to the extent required by law or as necessary
to fulfill the promises and obligations set forth in this Agreement or for
related business purposes. This provision specifically means that the disclosure
of the contents of the Agreement will be limited to that required by SEC Rules
and Regulations and will not be otherwise the subject of direct communication
with shareholders. Applebee's agrees to provide to Xxxxxxx any statement or
information required by SEC Rules and Regulations before publishing. Applebee's
acknowledges and agrees that if Applebee's breaches confidentiality, Xxxxxxx
will be entitled to seek damages, attorney's fees, expenses, and costs.
(c) In response to any inquiry regarding the facts or circumstances leading
to this Agreement and/or the contents of this Agreement by any person or entity
not authorized to receive confidential information under this Agreement, Xxxxxxx
and Applebee's agree to limit their response to a statement that the matter is
confidential.
F. No Admission of Liability:
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Xxxxxxx acknowledges that this Agreement shall not in any way be construed
as an admission by Applebee's of any liability on the part of Applebee's, and
that all such liability is expressly denied by Applebee's.
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G. Voluntary Nature of Agreement and Advice of Counsel:
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Xxxxxxx acknowledges that Xxxxxxx has read this Agreement and understands
its terms, and signs the Agreement voluntarily of Xxxxxxx'x own free will,
without coercion or duress, and with full understanding of the significance and
binding effect of the Agreement. Xxxxxxx is hereby advised to consult with an
attorney before signing this Agreement.
H. Consideration and Revocation Periods:
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Xxxxxxx received this Agreement on July 20, 2001. Xxxxxxx has twenty-one
(21) calendar days, after the date she received the Agreement, within which to
consider the Agreement, although Xxxxxxx may return it sooner if desired.
Xxxxxxx may revoke the Agreement, by delivering a written notice of revocation
to Applebee's Chief People Officer, within seven (7) calendar days after Xxxxxxx
signs the Agreement. The Agreement will become effective and enforceable on the
eighth (8th) calendar day following the date Xxxxxxx signs the Agreement.
I. Binding Effect:
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This Agreement will be binding upon Xxxxxxx and Xxxxxxx'x heirs,
administrators, representatives, executors, successors and assigns, and will
inure to the benefit of Applebee's and its successors and assigns. In the event
of Xxxxxxx'x incapacity or death, all payments payable to Xxxxxxx will be paid
to her spouse or estate, as applicable.
J. No Liens:
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Xxxxxxx represents and warrants that there are no existing or outstanding
attorneys' liens or other liens, which are not extinguished or satisfied by the
execution of this Agreement. Xxxxxxx agrees to indemnify and hold harmless
Applebee's for any liability in connection with such liens.
K. Recover of Amounts Paid:
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If Xxxxxxx breaches a material provision of this agreement, or if any
provision of Paragraph B, or any of its subparts, is found by a court of
competent jurisdiction to be unenforceable as a result of any action Xxxxxxx
initiates, then to the extent permitted by law, Xxxxxxx agrees to return to
Applebee's the value of the payments and/or benefits provided to Xxxxxxx under
this agreement.
L. Governing Law:
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This Agreement will be interpreted and enforced in accordance with the laws
of the State of Kansas.
M. Severability:
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Should any provision of this Agreement be declared or determined by a court
of competent jurisdiction to be invalid or otherwise unenforceable, the
remaining parts, terms and provisions shall continue to be valid, legal and
enforceable, and will be performed and enforced to the fullest extent permitted
by law.
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N. Complete Agreement:
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This Agreement and attached Exhibit A contains the entire agreement between
Xxxxxxx and Applebee's and supersedes all prior agreements or understandings
between them on the subject matters of this Agreement. No change or waiver of
any part of the AGREEMENT will be valid unless in writing and signed by both
Xxxxxxx and Applebee's.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year designated below.
XXXXXXXX'X INTERNATIONAL, INC. XXXXX XXXXXXX
By:______________________________ __________________________________
Date: ____________________________ Date: _____________________________
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