EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Employment Agreement") is made and entered
into as of the 29th day of July, 1996 (the "Commencement Date"), by and between
CHECKERS DRIVE-IN RESTAURANTS, INC., a Delaware corporation (the "Company"), and
XXXXX XXXXXX, an individual ("Employee").
W I T N E S S E T H
WHEREAS, the Company develops, produces, owns, operates and
franchises quick-service "double drive-thru" restaurants under the name
"Checkers" (such activities, together with all other activities of the Company
and its subsidiaries, as conducted at or prior to the termination of this
Employment Agreement, and any future activities reasonably related thereto which
are contemplated by the Company and/or its subsidiaries at the termination of
this Employment Agreement identified in writing by the Company to Employee at
the date of such termination, are hereinafter referred to as the "Business
Activities");
WHEREAS, the Company desires to employ Employee upon the terms and
subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual
promises, covenants and conditions herein contained and for other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto intending to be legally bound hereby agree as
follows:
Section 1. EMPLOYMENT. The Company hereby employs Employee, and Employee
hereby accepts employment with the Company, all upon the terms and subject to
the conditions set forth in this Employment Agreement.
Section 2. CAPACITY AND DUTIES. Employee is and shall be employed in the
capacity of Vice President of Franchise Operations of the Company and its
subsidiaries and shall have such other duties, responsibilities and authorities
as are assigned to him by the President so long as such additional duties,
responsibilities and authorities are consistent with Employee's position and
level of authority as Vice President of Franchise Operations of the Company.
Subject to the advice and general directions of the President, and except as
otherwise herein provided, Employee shall devote substantially all of his
business time, best efforts and attention to promote and advance the business of
the Company and its subsidiaries and to perform diligently and faithfully all
the duties, responsibilities and obligations of Employee to be performed by him
under this Employment Agreement. Employee's duties shall include all of those
duties being performed by Employee as of the date hereof.
During the Employment Period (as hereinafter defined),
Employee shall not be employed in any other business activity, whether or not
such activity is pursued for gain, profit or other pecuniary advantage;
provided, however, that this restriction shall not be construed as preventing
Employee from investing his personal assets in a business which does not compete
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with the Company or its subsidiaries or with any other company or entity
affiliated with the Company, where the form or manner of such investment will
not require services of any significance on the part of Employee in the
operation of the affairs of the business in which such investment is made and in
which his participation is solely that of a passive investor or advisor.
Section 3. TERM OF EMPLOYMENT. The term of employment of Employee by the
Company pursuant to this Employment Agreement shall be for the period (the
"Employment Period") commencing on the Commencement Date and ending on the one
year anniversary of the Commencement Date, or such earlier date that Employee's
employment is terminated in accordance with the provisions of this Employment
Agreement; provided however, that the Employment Period shall automatically be
extended for a successive one year period, with Employee's written consent,
unless the Company gives Employee thirty (30) days written notice prior to the
end of such year that it does not intend to extend the term of the Employment
Period.
Section 4. PLACE OF EMPLOYMENT. Employee's principal place of work shall
be located at the principal offices of the Company, currently located in
Clearwater, Florida, provided that the principal offices of the Company may be
moved from time to time in the discretion of the Board of Directors.
Section 5. COMPENSATION. During the Employment Period, subject to all the
terms and conditions of this Employment Agreement and as compensation for all
services to be rendered by Employee under this Employment Agreement, the Company
shall pay to or provide Employee with the following:
Section 5.1. BASE SALARY. The Company shall pay to employee a base
annual salary at the rate of Ninety-Five Thousand Dollars ($95,000) per year
through the end of the term of the Agreement and any extensions thereof, payable
at such intervals (at least monthly) as salaries are paid generally to other
executive officers of the Company.
Section 5.2. BONUS. Employee shall be eligible to receive an annual
cash bonus pursuant to the cash bonus plan adopted by the Company, and available
generally to employees of similar position. The Company reserves the right to
modify or eliminate the cash bonus plan at any time.
Section 5.3. VACATION AND OTHER BENEFITS. Employee shall be entitled
to Three (3) weeks vacation during each calendar year. Vacation days not used
may not be carried into subsequent years. The Company shall provide Employee
with the other benefits specified on Exhibit 5.03 attached hereto.
Section 6. ADHERENCE TO STANDARDS. Employee shall comply with the written
policies, standards, rules and regulations of the Company from time to time
established for all executive officers of the Company consistent with Employee's
position and level of authority.
Section 7. REVIEW OF PERFORMANCE. The President shall periodically review
and evaluate the performance of Employee under this Employment Agreement with
Employee.
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Section 8. EXPENSES. The Company shall reimburse Employee for all
reasonable, ordinary and necessary expenses (including, but not limited to,
automobile and other business travel and customer entertainment expenses)
incurred by him in connection with his employment hereunder in accordance with
the written policy and guidelines established by the Company for executive
officers; provided, however, Employee shall render to the Company a complete and
accurate accounting of all such expenses in accordance with the substantiation
requirements of section 274 of the Internal Revenue Code of 1986, as amended
(the "Code"), as a condition precedent to such reimbursement.
Section 9. TERMINATION WITH CAUSE BY THE COMPANY. This Employment
Agreement may be terminated with Cause (as hereinafter defined) by the Company
provided that the Company shall (i) give Employee the Notice of Termination (as
hereinafter defined) and (ii) pay Employee his annual base salary through the
Date of Termination (as hereinafter defined) at the rate in effect at the time
the Notice of Termination is given plus any bonus or incentive compensation
which has been earned or has become payable pursuant to the terms of any
compensation or benefit plan as of the Date of Termination, but which have not
yet been paid.
Section 10. TERMINATION WITHOUT CAUSE BY THE COMPANY OR FOR GOOD REASON BY
EMPLOYEE. This Employment Agreement may be terminated by the Company (i) at the
end of the Term of Employment, (ii) during the Term of Employment without cause
as hereinafter defined, or (iii) by reason of the death or Disability Reason (as
hereinafter defined) provided that the Company shall continue to pay to Employee
(or the estate of Employee in the event of termination due to the death of
employee) the compensation and other benefits described in Section 5 of this
Employment Agreement, except for annual cash bonuses or incentive compensation
for six (6) months from the Date of Termination. Employee's right to terminate
his employment for Good Reason shall not be affected by his incapacity due to
physical or mental illness. In the event of termination by the Company by reason
of Employee's death or Disability, medical, hospitalization or disability
benefits coverage comparable to that provided by the company during Employee's
lifetime shall be provided to Employee, his spouse and dependents for twelve
(12) months from the Date of Termination, and for eighteen (18) months from the
Date of Termination with respect to medical and hospitalization benefits for the
Employee and his family. The benefits provided under this Section 10 shall be no
less favorable to Employee in terms of amounts, deductibles and costs to him, if
any, than such benefits provided by the Company to him and shall not be
interpreted so as to limit any benefits to which Employee, as a terminated
employee of the Company, or his family may be entitled under the Company's life
insurance, medical, hospitalization or disability plans following his Date of
Termination or under applicable law.
In the event of Termination by the Employee for Good Reason, the
Company shall continue to pay to Employee the compensation and other benefits
described in Section 5 of this Employment Agreement, except for annual cash
bonuses or incentive compensation for six (6) months from the Date of
Termination, and shall continue to provide medical, hospitalization or
disability benefits coverage to Employee, his spouse and dependents for twelve
(12) months from the Date of Termination.
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In the event that within a period of one (1) year of a Change in
Control, this Employment Agreement is terminated by the Company for any reason
other than for cause (or the Company gives notice that it is not renewing the
Employment Agreement pursuant to Section 3), the Company shall continue to pay
to Employee the compensation and other benefits described in Section 5 of this
Employment Agreement, except for annual cash bonuses or incentive compensation
for twelve (12) months from the Date of Termination, and shall continue to
provide medical, hospitalization or disability benefits coverage to Employee,
his or her spouse and dependents for a period of eighteen (18) months from the
Date of Termination.
Section 11. DEFINITIONS. In addition to the words and terms elsewhere
defined in this Employment Agreement, certain capitalized words and terms used
in this Employment Agreement shall have the meanings given to them by the
definitions and descriptions in this Section 12 unless the context or use
indicates another or different meaning or intent, and such definition shall be
equally applicable to both the singular and plural forms of any of the
capitalized words and terms herein defined. The following words and terms are
defined terms under this Employment Agreement:
Section 11.1. "Disability" shall mean a physical or mental illness
which, in the judgment of the company after consultation with the licensed
physician attending Employee, impairs Employee's ability to substantially
perform his duties under this Employment Agreement as an employee and as a
result of which he shall have been absent from his duties with the Company on a
full-time basis for six (6) consecutive months.
Section 11.2. A termination with "Cause" shall mean a termination of
this Employment Agreement by reason of a good faith determination by the Board
that Employee (i) failed to substantially perform his duties with this Company
(other than a failure resulting from his incapacity due to physical or mental
illness) after a written demand for substantial performance has been delivered
to him by the Board, which demand specifically identifies the manner in which
the Board believes he has not substantially performed his duties; (ii) has
engaged in conduct the consequences of which are materially adverse to the
company, monetarily or otherwise; or (iii) has materially breached the terms of
this Employment Agreement. No act, or failure to act, on Employee's part shall
be grounds for termination with Cause unless he has acted or failed to act with
an absence of good faith or without a reasonable belief that his action or
failure to act was in or at least not opposed to the best interests of the
Company. Employee shall not be deemed to have been terminated with cause unless
there shall have been delivered to Employee a letter setting forth the reasons
for the Company's termination of the Employee with cause.
Section 11.3. "Good Reason" shall mean the occurrence of any of the
following events without Employee's prior express written consent: (i) any
material change in Employee's status, title, authorities or responsibilities
under this Employment Agreement which represents a demotion from such status,
title, position or responsibilities which are materially inconsistent with his
status, title, position or work responsibilities set forth in this Employment
Agreement; or any removal of Employee from, or failure to appoint, elect,
reappoint or reelect Employee to, any of such positions, except in connection
with the termination of his employment with Cause, or as a result of his death
or Disability; provided, however, that no change in title, authorities or
responsibilities customarily attributable solely to the Company ceasing to be a
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publicly traded corporation shall constitute Good Reason hereunder; (ii) the
failure by the Company to continue in effect any incentive, bonus or other
compensation plan in which Employee participates, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to the failure to continue such plan, or the failure by the
Company to continue Employee's participation therein, or any action by the
Company which would directly or indirectly materially reduce his participation
therein or reward opportunities thereunder; provided, however, that Employee
continues to meet all eligibility requirements thereof; (iii) the failure by the
Company to continue in effect any employee benefit plan (including any medical,
hospitalization, life insurance or disability benefit plan in which Employee
participates), or any material fringe benefit or prerequisite enjoyed by him
unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to the failure to continue such
plan, or the failure by the Company to continue Employee's participation
therein, or any action by the Company which would directly or indirectly
materially reduce his participation therein or reward opportunities thereunder,
or the failure by the Company to provide him with the benefits to which he is
entitled under this Employment Agreement; provided, however, that Employee
continues to meet all eligibility requirements thereof; (iv) any other material
breach by the Company of any provision of this Employment Agreement; (v) the
failure of the Company to obtain a satisfactory agreement from any successor or
assign of the Company to assume and agree to perform this Employment Agreement,
as contemplated in Section 22 hereof; (vi) any purported termination of
employee's employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of this Employment Agreement; and for purposes of
this Employment Agreement, no such purported termination shall be effective; or
(vii) any Change of Control as hereinafter defined) of the Company.
Section 11.4. Change of Control. "Change of Control" shall be deemed
to have occurred when: (i) securities of the Company representing 50% or more of
the combined voting power of the Company's then outstanding voting securities
are acquired pursuant to a tender offer or an exchange offer by a person or
entity which is not a wholly-owned subsidiary of the Company or any of its
affiliates; (ii) a merger or consolidation is consummated in which the Company
is a constituent corporation and which results in less than 50% of the
outstanding voting securities of the surviving or resulting entity being owned
by the then existing stockholders of the Company; (iii) a sale is consummated by
the Company of substantially all of the Company's assets to a person or entity
which is not a wholly-owned subsidiary of the Company or any of its affiliates;
(iv) a Control Purchase (as defined in Section 8 of the Plan) has occurred; (v)
during any period of two consecutive years, individuals who, at the beginning of
such period, constituted the Board cease, for any reason, to constitute at least
a majority thereof, unless the election or nomination for election for each new
director was approved by the vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period; (vi) an
Approved Transaction (as defined in Section 8 of the Plan) has occurred; or
(vii) a merger or consolidation with Rally's Hamburgers, Inc, CKE Restaurants,
Inc., or any entity affiliated with either or them.
Section 11.5. Notice of Termination. "Notice of Termination" shall
mean a written notice which shall indicate the specified termination provision
in this Employment Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Employee's employment under the provision so indicated; provided, however, no
such purported termination shall be effective without such Notice of
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Termination; provided further, however, any purported termination by the Company
or by Employee shall be communicated by a Notice of Termination to the other
party hereto in accordance with Section 13 of this Employment Agreement.
Section 11.6. Date of Termination. "Date of Termination" shall mean
the date specified in the Notice of Termination (which, in the case of a
termination pursuant to section 10 of this Employment Agreement shall not be
less than sixty (60) days, and in the case of a termination pursuant to Section
11 of this Employment Agreement shall not be more than sixty (60) days, from the
date such Notice of Termination is given); provided, however, that if within
thirty (30) days after any Notice of Termination is given the party receiving
such Notice of Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the date finally
determined by either mutual written agreement of the parties or by the final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been taken).
Section 12. FEES AND EXPENSES. The Company shall pay all legal fees and
related expenses (including the costs of experts, evidence and counsel) incurred
by Employee as a result of a contest or dispute over Employee's termination of
employment if such contest or dispute is resolved in Employee's favor.
Section 13. NOTICES. For the purposes of this Employment Agreement,
notices and all other communications provided for in the Employment Agreement
shall be in writing and shall be deemed to have been duly given when personally
delivered or sent by certified mail, return receipt requested, postage prepaid,
or by expedited (overnight) courier with established national reputation,
shipping prepaid or billed to sender, in either case addressed to the respective
addresses last given by each party to the other (provided that all notices to
the Company shall be directed to the attention of the President with a copy to
the Secretary of the Company) or to such other address as either party may have
furnished to the other in writing in accordance herewith. All notices and
communication shall be deemed to have been received on the date of delivery
thereof, or on the second day after deposit thereof with an expedited courier
service, except that notice of change of address shall be effective only upon
receipt.
Section 14. LIFE INSURANCE. The Company may, at any time after the
execution of this Employment Agreement, apply for and procure as owner and for
its own benefit, life insurance on Employee, in such amounts and in such form or
forms as the Company may determine. Employee shall, at the request of the
Company, submit to such medical examinations, supply such information, and
execute such documents as may be required by the insurance company or companies
to whom the Company has applied for such insurance. Employee hereby represents
that to his knowledge he is in excellent physical and mental condition and is
not under the influence of alcohol, drugs or similar substance.
Section 15. PROPRIETARY INFORMATION AND INVENTIONS. Employee understands
and acknowledges that:
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Section 15.1. TRUST. Employees employment creates a relationship of
confidence and trust between Employee and the Company with respect to certain
information applicable to the business of the Company its subsidiaries
(collectively, the "Group") or applicable to the business of any franchisee,
vendor or customer of any of the Group, which may be made known to Employee by
the Group or by any franchisee, vendor or customer of any of the Group or
learned by Employee during the Employment Period.
Section 15.2. PROPRIETARY INFORMATION. The Group possesses and will
continue to possess information that has been created, discovered, or developed
by, or otherwise become known to, the Group (including, without limitation,
information created, discovered, developed or made known to by Employee during
the period of or arising out of my employment by the Company) or in which
property rights have been or may be assigned or otherwise conveyed to the Group,
which information has commercial value in the business in which the Group is
engaged and is treated by the Group as confidential. Except as otherwise herein
provided, all such information is hereinafter called "Proprietary Information",
which term, as used herein, shall also include, but shall not be limited to,
data, functional specifications, computer programs, know-how, research,
technology, improvements, developments, designs, marketing plans, strategies,
forecasts, new products, unpublished financial statements, budgets, projections,
licenses, franchises, prices, costs, and customer, supplier and potential
acquisition candidates lists. Notwithstanding anything to the contrary, the term
"Proprietary Information" shall not include (i) information which is in the
public domain, (ii) information which is published or otherwise becomes part of
the public domain through no fault of Employee, (iii) information which Employee
can demonstrate was in Employee's possession at the time of disclosure and was
not acquired by Employee directly or indirectly from any of the Group on a
confidential basis, (iv) information which becomes available to Employee on a
non-confidential basis from a source other than any of the Group and which
source, to the best of employee's knowledge, did not acquire the information on
a confidential basis or (v) information required to be disclosed by any federal
or state law, rule or regulation or by any applicable judgment, order or decree
or any court or governmental body or agency having jurisdiction in the premises.
All Proprietary Information shall be the sole property of the
Group and their respective assigns. Employee assigns to the Company any rights
Employee may have or acquire in such Proprietary Information. At all times, both
during Employee's employment by the Company and after its termination, Employee
shall keep in strictest confidence and trust all Proprietary Information, and
Employee shall not use or disclose any Proprietary Information without the
written consent of the Group, except as may be necessary in the ordinary course
of performing Employee's duties as an employee of the Company.
Section 16. SURRENDER OF DOCUMENTS. Employee shall, at the request of the
Company, promptly surrender to the Company or its nominee any Proprietary
Information or document, memorandum, record, letter or other paper in his
possession or under his control relating to the operation, business or affairs
of the Group.
Section 17. PRIOR EMPLOYMENT AGREEMENTS. Employee represents and warrants
that Employee's performance of all the terms of this Employment Agreement and as
an employee of the Company does not, and will not, breach any employment
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agreement, arrangement or understanding or any agreement, arrangement or
understanding to keep in confidence proprietary information acquired by Employee
in confidence or in trust prior to Employee's employment by the Company.
Employee has not entered into, and shall not enter into, any agreement,
arrangement or understanding, either written or oral, which is in conflict with
this Employment Agreement or which would be violated by Employee entering into,
or carrying out his obligations under, this Employment Agreement.
Section 18. RESTRICTIVE COVENANT. Employee acknowledges and recognizes
Employee's possession of Proprietary Information and the highly competitive
nature of the business of the Group and, accordingly, so long as the Company is
not in default under this Agreement agrees that in consideration of the premises
contained herein Employee will not, during the period of Employee's employment
by the Company and (i) for a period of one (1) year following the Date of
Termination if this Employment Agreement is terminated by the Company with Cause
or by the Employee other than for Good Reason or (ii) six (6) months following
the Termination Date if this Employment Agreement is terminated by the Company
other than with Cause or by the Employee for Good Reason, (a) directly or
indirectly engage in any Competitive Business (as hereinafter defined) in the
United States, whether such engagement shall be an employer, officer, director,
owner, employee, consultant, stockholder, partner or other participant in any
Competitive Business, (b) assist others in engaging in any Competitive Business
in the manner described in the foregoing clause (a), or (c) induce employees of
the Company to terminate their employment with the Company or engage in any
Competitive Business in the United States; provided, however, that the ownership
of the outstanding capital stock of a corporation whose shares are traded on a
national securities exchange or on the over-the-counter market or the ownership
and/or operation of a Checkers Restaurant under a franchise agreement with the
Company shall not be deemed engaging any Competitive Business. "Competitive
Business" shall mean any restaurant providing exclusively drive-thru or
drive-in, fast food, primarily featuring hamburgers, cheeseburgers, hot dogs or
other food items offered by a Checkers Restaurant, or any other business that is
the same as or similar to the Checkers Restaurant concept as it exists on the
date of this Employment Agreement or on the Termination Date.
Section 19. REMEDIES. Employee acknowledges and agrees that the Company's
remedy at law for a breach or a threatened breach of the provisions herein would
be inadequate, and in recognition of this Fat, in the event of a breach or
threatened breach by Employee of any of the provisions of this Employment
Agreement, it is agreed that the Company shall be entitled to, equitable relief
in the form of specific performance, a temporary restraining order, a temporary
or permanent injunction or any other equitable remedy which may then be
available, without posting bond or other security. Employee acknowledges that
the granting of a temporary injunction, a temporary restraining order or other
permanent injunction merely prohibiting Employee from engaging in any Business
Activities would not be an adequate remedy upon breach or threatened breach of
this Employment Agreement, and consequently agrees upon any such breach or
threatened breach to the granting of injunctive relief prohibiting Employee from
engaging in any activities prohibited by this Employment Agreement. No remedy
herein conferred is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder now or hereinafter existing at law or in equity or by
statute or otherwise.
Section 20. SUCCESSIVE EMPLOYMENT NOTICE. Within five (5) business days
after the Termination Date, Employee shall provide notice to the Company of
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Employee's next intended employment. If such employment is not known by employee
at such date, Employee shall notify the Company immediately upon determination
of such information. Employee shall continue to provide the company with notice
of employee's place and nature of employment and any change in place or nature
of employment during the period ending (i) two (2) years after the Termination
Date if this Employment Agreement is terminated by the Company for Cause or by
the Employee other than for Good Reason or (ii) six (6) months after the
Termination Date if this employment Agreement is terminated by the company other
than for Cause or by the Employee for Good Reason. Failure of employee to
provide the company with such information in an accurate and timely fashion
shall be deemed to be a breach of this Employment Agreement and shall entitle
the Company to all remedies provided for in this Employment Agreement as a
result of such breach.
Section 21. SUCCESSORS. This Employment Agreement shall be binding on the
Company and any successor to any of its businesses or assets. Without limiting
the effect of the prior sentence, the Company shall use its best efforts to
require any successor or assign (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Employment Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession or assignment had taken
place. As used in this Employment Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor or assign to its business and/or assets
as aforesaid which assumes and agrees to perform this Employment Agreement or
which is otherwise obligated under this Agreement by the first sentence of this
Section 22, by operation of law or otherwise.
Section 22. INDEMNIFICATION AGREEMENT. Upon the execution of this
Employment Agreement, the Company and employee shall each execute and deliver to
the other an Indemnification Agreement dated as of the date hereof.
Section 23. BINDING EFFECT. This Employment Agreement shall inure to the
benefit of and be enforceable by Employee's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Employee should die while any amounts would still be payable to him
hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Employment
Agreement to Employee's estate.
Section 24. MODIFICATION AND WAIVER. No provision of this Employment
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by Employee and such officer as
may be specifically designated by the Board. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Employment Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
Section 25. HEADINGS. Headings used in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
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Section 26. WAIVER OF BREACH. The waiver of either the Company or Employee
of a breach of any provision of this Employment Agreement shall not operate or
be construed as a waiver of any subsequent breach by either the Company or
Employee.
Section 27. AMENDMENTS. No amendments or variations of the terms and
conditions of this Employment Agreement shall be valid unless the same is in
writing and signed by all of the parties hereto.
Section 28. SEVERABILITY. The invalidity or unenforceability of any
provision of this Employment Agreement, whether in whole or in part, shall not
in any way affect the validity and/or enforceability of any other provision
herein contained. any invalid or unenforceable provision shall be deemed
severable to the extent of any such invalidity or unenforceability. It is
expressly understood and agreed that while the Company and Employee consider the
restrictions contained in this Employment Agreement reasonable for the purpose
of preserving for the Company the good will, other proprietary rights and
intangible business value of the Company if a final judicial determination is
made by a court having jurisdiction that the time or territory or any other
restriction contained in this Employment Agreement is an unreasonable or
otherwise unenforceable restriction against Employee, the provisions of such
clause shall not be rendered void but shall be deemed amended to apply as to
maximum time and territory and to such other extent as such court may judicially
determine or indicate to be reasonable.
Section 29. GOVERNING LAW. This Employment Agreement shall be construed
and enforced pursuant to the laws of the State of Florida.
Section 30. ARBITRATION. Any controversy or claim arising out of or
relating to this Employment Agreement or any transactions provided for herein,
or the breach thereof, other than a claim for injunctive relief shall be settled
by arbitration in accordance with the commercial Arbitration Rules of the
American Arbitration Association (the "Rules") in effect at the time demand for
arbitration is made by any party. The evidentiary and procedural rules in such
proceedings shall be kept to the minimum level of formality that is consistent
with the Rules. One arbitrator shall be named by the Company, a second shall be
named by Employee and the third arbitrator shall be named by the two arbitrators
so chosen. In the event that the third arbitrator is not agreed upon, he or she
shall be named by the American Arbitration Association. Arbitration shall occur
in Tampa, Florida or such other location agreed to by the Company and employee.
The award made by all or a majority of the panel of arbitrators shall be final
and binding, and judgment may be entered in any court of law having competent
jurisdiction. The award is subject to confirmation, modification, correction, or
vacation only as explicitly provided in Title 9 of the United States Code. The
prevailing party shall be entitled to an award of pre- and post-award interest
as well as reasonable attorneys' fees incurred in connection with the
arbitration and any judicial proceedings related thereto.
Section 31. EXECUTIVE OFFICER STATUS. Employee acknowledges that he shall
be deemed to be an "executive officer" of Checkers for purposes of the
Securities Act of 1993, as amended (the "1933 Act"), and the Securities Exchange
Act of 1934, as amended (the "1934 Act") and that he shall comply in al respects
with all the rules and regulations under the 1933 Act and the 1934 act
applicable to him in a timely and non-delinquent manner. In order to assist the
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company in complying with its obligations under the 1933 Act and 1934 Act,
Employee shall provide to the Company such information about Employee as the
Company shall reasonably request including, but not limited to, information
relating to personal history and stockholdings. Employee shall report to the
General Counsel of the Company or other designated officer of the Company all
changes in beneficial ownership of any shares of the Company Common Stock deemed
to be beneficially owned by Employee and/or any members of Employee's immediate
family.
Section 32. COUNTERPARTS. This Employment Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute but one document.
Section 33. EXHIBITS. The Exhibits attached hereto are incorporated herein
by reference and are an integral part of this Employment Agreement.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed
by the Company and the Employee as of the date first above written.
CHECKERS DRIVE-IN RESTAURANTS, INC.
By: \S\ XXXXXX X. XXXXXXX
----------------------------------
Xxxxxx X. XxXxxxx, President
EMPLOYEE
\S\ XXXXX XXXXXX
----------------------------------
Xxxxx Xxxxxx
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