EXHIBIT 10.79
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made and entered into by and between AFC
and Xxxxxx Xxxxxxx (" Consultant"). As used in this Agreement, "AFC" shall
include AFC Enterprises, Inc., the AFC Foundation, Church's Chicken, Popeyes
Chicken & Biscuits, Seattle Coffee Company, Seattle's Best Coffee, Torrefazione
Italia, Cinnabon International, Inc., Cinnabon, Inc., and any and all related
companies and/or subsidiaries and/or committees, and their respective present
and former directors, officers, fiduciaries, employees, representatives,
agents, successors and assigns, both in their representative and individual
capacities.
BACKGROUND INFORMATION
A. Consultant is an employee of AFC Enterprises, Inc.
B. Consultant is resigning as an employee and officer of AFC
Enterprises, Inc., a member of the AFC Enterprises, Inc.
Board of Directors, and officer of various subsidiaries of
AFC Enterprises, Inc.
C. Consultant has acquired and developed experience and
knowledge concerning AFC which experience and knowledge AFC
desires to have made available to it during the transition
occurring as a result of Consultant's resignation.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions hereinafter set forth, and other good and valuable consideration,
the receipt, adequacy, and sufficiency of which are acknowledged, the parties
hereto agree as follows:
1. Employment. Consultant's employment and duties as an employee of AFC
shall terminate effective April 28, 2003.
2. Term. Subject to the provisions hereinafter set forth, the term (the
"Term") of this Agreement shall commence on the first business day
following the expiration of the Revocation Period as outlined in the
Release Agreement signed by Consultant and shall end August 29, 2003.
This term cannot be extended except by the express agreement of both
parties, in writing.
3. Duties. During the Term, Consultant shall perform such consulting
services as may be requested from time to time by the CEO of AFC
Enterprises, Inc., or his designee, at such times and locations as may
be mutually agreed upon in good faith between Consultant and AFC.
Consultant agrees to cooperate fully with AFC by answering questions
or providing AFC with information known by Consultant and requested by
AFC concerning the business and operations of AFC, including, without
limitation, financial and accounting information. Consultant also
agrees to cooperate fully with AFC in connection with actual or
contemplated litigation brought by or asserted
against AFC. Such cooperation shall include, but not be limited to,
(a) providing information and assistance to AFC and/or its counsel in
connection with such litigation and (b) refusing to provide any
information, documents, or assistance to the adverse parties or their
counsel, agents, or representatives in such actual or contemplated
litigation, except as may be required by law in response to a
subpoena, court order, or other lawful process. Consultant agrees to
provide AFC with prompt oral and, within three (3) days, follow-up
written notice of any subpoena or other lawful process requesting
testimony or documents from Consultant about AFC or Consultant's
employment with AFC. Consultant's obligations under this Agreement are
in addition to his obligations under Section 10.03 of the Employment
Agreement dated as of December 8, 2000, as amended February 7, 2001,
and August 31, 2001 (hereinafter collectively referred to as the
"Employment Agreement"). The obligations and restrictions set forth in
this paragraph shall survive the termination of this Agreement and
shall remain in full force and effect.
4. Compensation. Total payment of $129,550.00 payable by AFC to
Consultant in four (4) monthly installments as follows:
a. First and second payments of $32,000.00 per month for months
of May and June 2003, payable on the eighth day of the month,
following the expiration of the Revocation Period as outlined
in the Release Agreement signed by Consultant;
b. Third payment $32,775.00 payable on or about July 8, 2003;
and
c. Fourth payment of $32,775.00 payable on or about August 8,
2003.
5. Expenses. AFC shall reimburse Consultant for reasonable out-of-pocket
expenses actually incurred by Consultant and supported by satisfactory
evidence of the expenditure with the prior written consent of the
Chief Executive Officer of AFC.
6. Independent Contractor. Consultant acknowledges and agrees that he is
an independent contractor and is not an employee or partner of or
joint venturer with AFC. Consultant agrees that he is responsible for
all federal, state and local tax liabilities and further agrees to
indemnify and hold harmless AFC to the extent of any obligation
imposed on AFC to pay any withholding taxes, social security,
unemployment or disability insurance or similar items including any
interest and penalties thereon, with respect to any payments made to
Consultant hereunder.
7. Ownership of Property. All reports, plans, written proposals, and all
other business information or products relating to AFC or the business
developed, prepared or produced by Consultant in connection with the
performance of Consultant's obligations hereunder shall be and remain
after termination of this Agreement the exclusive property of AFC.
8. Confidential Information. Consultant agrees that in addition to his
obligations under Section 10 of the Employment Agreement concerning
information disclosed to Consultant during the course of his
employment, AFC and Consultant recognize that, during the term of this
Agreement, AFC will continue to disclose to Consultant Proprietary
Information concerning AFC, which constitutes valuable assets of AFC.
The parties further acknowledge that AFC has, and will, invested
considerable amounts of time, effort and corporate resources in
developing such valuable assets and
that disclosure by Consultant of such assets to the public shall cause
irreparable harm, damage and loss to AFC. Accordingly, Consultant
acknowledges and agrees:
(a) that the Proprietary Information is and shall remain
the exclusive property of AFC;
(b) to use the Proprietary Information exclusively for
the purpose of fulfilling the obligations under this Agreement;
(c) to return the Proprietary Information, and any
copies thereof, in his possession or under his control, to AFC upon
request of AFC, or termination of this Agreement; and
(d) to hold the Proprietary Information in confidence
and not copy, publish or disclose to others or allow any other party
to copy, publish or disclose to others in any form, any Proprietary
Information without the prior written approval of an authorized
representative of AFC, unless required by law.
The obligations and restrictions set forth in this paragraph shall
survive this Agreement and shall remain in full force and effect as
follows:
(a) as to Trade Secrets, indefinitely, and
(b) as to Confidential Information, for a period of two
(2) years after the expiration or termination of this
Agreement for any reason.
The confidentiality, property, and proprietary rights protections
available in this Agreement are in addition to, and not exclusive of,
any and all other corporate rights, including those provided under
copyright and trade secret and confidential information laws. The
obligations set forth in this Paragraph shall not apply or shall
terminate with respect to any particular portion of the Proprietary
Information which (i) was in Consultant's possession, free of any
obligation of confidence, prior to his receipt from AFC, (ii)
Consultant establishes the Proprietary Information is already in the
public domain at the time AFC communicates it to Consultant, or
becomes available to the public through no breach of this Agreement by
Consultant, or (iii) Consultant establishes that he received the
Proprietary Information independently and in good faith from a third
party lawfully in possession thereof and having no obligation to keep
such information confidential.
For purposes of this paragraph 10, the following terms shall have the
following meanings:
"Confidential Information" means information which does not
rise to the level of a Trade Secret, but is valuable to AFC and
provided in confidence to Consultant.
"Proprietary Information" means, collectively, Trade Secrets
and Confidential Information.
"Restricted Period" means the period commencing as of the
date hereof and ending on that date two years (2) year after the
termination of this Agreement.
"Trade Secrets" means information which derives economic
value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and is the subject
of efforts that are reasonable under the circumstances to maintain its
secrecy.
9. No Assignment. Consultant shall not assign, transfer or convey his
rights nor delegate his responsibilities pursuant to this Agreement.
10. Notices. Notice to be given any party under this Agreement shall not
be effective unless in writing and hand-delivered or mailed by
certified or registered mail to the relevant party at the address
stated below:
In the case of Consultant:
Xxxxxx Xxxxxxx
0000 Xxxxxx xx Xxxxxx
Xxxxxxx, XX 00000
In the case of AFC:
Xxxxx Xxxxxxx, CEO
AFC Enterprises, Inc.
0 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
or at such other address as may from time to time be furnished to
AFC by Consultant or by AFC to Consultant by notice as set forth
above.
11. Binding Effect. This Agreement shall be binding on the parties hereto
and on their respective heirs, administrators, executors, successors,
and assigns.
12. Applicable Law. This Agreement and the rights and liabilities of the
parties hereto shall be determined in accordance with the laws of the
State of Georgia.
13. Dispute Resolution.
13.01 Agreement to Arbitrate. Consultant acknowledges and agrees
that any controversy or claim arising out of or relating to this
Consulting Agreement shall be settled by arbitration pursuant to the
Federal Arbitration Act. This includes, but is not limited to,
violations or alleged violations of any federal or state statute or
common law (including, but not limited to, the laws of the United
States or of any state, or the Constitution of the United States or of
any state), or of any other law, statute, ordinance, and any other
statute or common law. This provision shall not, however, preclude AFC
from seeking equitable relief.
13.02 Procedure. The arbitration shall be conducted in accordance
with the Rules of the American Arbitration Association: a single
arbitrator shall be selected under those
Rules, and the arbitration shall be initiated in Atlanta, Georgia,
unless the parties agree in writing to a different location or the
Arbitrator directs the arbitration to be held at a different location.
Except for filing fees, all costs of the arbitrator shall be allocated
by the arbitrator. The award rendered by the arbitrator shall be final
and binding on the parties hereto and judgment thereon may be entered
in any court having jurisdiction thereof. In addition, the arbitrator
has sole discretion to permit discovery consistent with the Federal
Rules of Civil Procedure and the judicial interpretation of those
rules upon request by any party; provided, however, it is the intent
of the parties that the arbitrator limit the time and scope of any
such discovery to the greatest extent practicable and provide a
decision as rapidly as possible given the circumstances of the claims
to be determined. The arbitrator also shall have the power and
authority to grant injunctive relief for any violation of this
Consulting Agreement and the arbitrator's order granting such relief
may be entered in any court of competent jurisdiction. The agreement
to arbitrate any claim arising out of the consulting relationship or
termination of the consulting relationship shall not apply to those
claims which cannot be made subject to this provision by statute,
regulation or common law.
13.03 Rights of Parties. Nothing in this clause shall be construed
to prevent AFC from asking a court of competent jurisdiction to enter
appropriate equitable relief to enjoin any violation of this
Consulting Agreement by Consultant. AFC shall have the right to seek
such relief in connection with or apart from the parties' rights under
this clause to arbitrate all disputes. With respect to disputes
arising under this Consulting Agreement that are submitted to a court
rather than an arbitrator, including actions to compel arbitration or
for equitable relief in aid of arbitration, the parties agree that
venue and jurisdiction are proper in any state or federal court lying
within Atlanta, Georgia and specifically consent to the jurisdiction
and venue of such court for the purpose of any proceedings
contemplated by this paragraph.
14. Severability. In the event any part of this Agreement shall be found
to be void, the remaining provisions of this Agreement shall
nevertheless be binding with the same effect as though the void part
were deleted.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but all of
which together shall constitute but a single document.
16. Entire Agreement. This Agreement expresses the entire agreement of the
parties with respect to the subject matter hereof, and all promises,
representation, understandings, arrangements, and prior agreements are
merged herein and made a part hereof as modified hereby. This
Agreement may not be changed orally, but only by an agreement in
writing signed by the party against whom an enforcement of any waiver,
change, modification, extension, or discharge is sought.
17. Opportunity to Review. Consultant represents and acknowledges that
Consultant is hereby advised to consult with an attorney prior to
execution of this Agreement, that Consultant has five business days
after Consultant receives this Agreement from AFC to consider this
Agreement,
IN WITNESS WHEREOF, Consultant has hereunder set his hand and seal and
AFC have caused this Consulting Agreement to be duly executed.
CONSULTANT:
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Date: May 27, 2003
AFC:
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Title: CEO
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Date: May 27, 2003
