GENERAL RELEASE
Exhibit
10.1
THIS
GENERAL RELEASE (hereinafter "Release") is made and entered into by and between
Xxxxxxxx Xxxxxxx ("Employee") and OS Restaurant Services, Inc. (“Employer”).
Employee was previously employed by Employer and its affiliates. The parties
desire to settle any and all disputes between them on terms that are mutually
agreeable. Accordingly, in consideration of the mutual promises set forth below,
Employer and Employee agree as follows:
1. |
Employer
will pay to Employee the sum of Four Hundred Twenty Five Thousand
Dollars
($425,000).00), as severance pay in return for Employee’s execution of
this release, which is intended to fully and finally resolve any
and all
matters between Employer and its affiliates and Employee, whether
actual
or potential, on terms that are mutually agreeable.
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2. |
By
entering into this Release, Employer does not admit any underlying
liability to Employee. Neither Employer nor Employee is entering
this
Release because of any wrongful acts of any
kind.
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3. |
Employee
promises and obligates himself to perform the following covenants
under
this Release:
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a.) |
Acting
for himself, his heirs, personal representatives, administrators
and
anyone claiming by or through him, Employee unconditionally and
irrevocably releases, acquits and discharges Employer and Releasees
from
any and all claims, whether known or unknown, that Employee may have
against Employer or Releasees as of the date of this Release, or
that any
person or entity claiming through Employee may have or claim to have
against Employer or Releasees.
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i) |
The
phrases “Employer” or “Employer and Releasees” or “Employer and Releasees”
shall mean each of OS Restaurant Services, Inc., Outback Steakhouse
of
Florida, Inc., OSI Restaurant Partners, Inc. and all of their subsidiaries
and affiliated entities and all related business concepts, as well
as
their past and present directors, officers, partners, shareholders,
supervisors (including, but not limited to, employees, representatives,
successors, assigns, subsidiaries, affiliates, parents, franchisees,
and
insurers.
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ii) |
The
term “claims” shall include lawsuits, causes of action, obligations,
promises, agreements, controversies, damages, debts, demands, liabilities,
and losses of every kind whether from accidental injury, illness,
occupational disease, or intentional acts. The term “claims” specifically
includes third-party claims for indemnity or contribution against
Employer
or its Releasees.
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b.) |
Employee
waives and relinquishes any rights that Employee may have to claim
reimbursement from Employer for attorney’s fees, litigation costs or
expenses that Employee may have incurred in the course of obtaining
legal
advice on any matter related to Employer, except as otherwise expressly
provided for herein.
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c.) |
Employee
waives and disclaims any right to any compensation that may be recovered
at any time after the execution of this Release as a result of any
proceeding arising out of or related to the employment relationship
that
is brought under the jurisdiction or authority of the Equal Employment
Opportunity Commission ("EEOC"), the Florida Commission on Human
Relations, the U.S. Department of Labor, or any other local, state,
or
federal court or agency. If any such agency or court assumes jurisdiction
of or files any complaint, charge, or proceeding against Employer
or its
Releasees, Employee will request such agency or court to dismiss
or
withdraw from the matter.
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d.) |
Employee
agrees that he will preserve the confidentiality of this Release
and not
discuss or disclose its existence, substance, or contents to anyone
except
as compelled or authorized by law.
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e.) |
Employee
agrees that he will not disparage Employer in any way to any person
or
entity. Employee specifically agrees that he will not communicate
to any
other person any opinions held by Employee regarding Employer’s compliance
with laws governing the employment relationship unless he receives
Employer’s express written permission to do so. Notwithstanding this
provision, in the unlikely event that Employee is subpoenaed as part
of a
government entity’s investigation of Employer, Employee may provide
truthful information about his employment to the government entity
without
violating this Release.
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f.) |
Employee
shall direct any prospective employers that ask for references regarding
his employment with Employer to contact Employer’s General Counsel.
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g.) |
Employee
shall comply with all other terms of this Release as provided for
herein,
including the following:
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(i)
Noncompetition.
(A) |
Post
Term.
For a continuous period of two
(2)
years commencing on expiration
of the revocation period defined in paragraph 8
Employee shall not, individually or jointly with others, directly
or
indirectly, whether for the
Employee’s own account or for that of any other person or entity, engage
in or own or hold any ownership
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interest
in any person or entity engaged in a casual
steakhouse restaurant
business that is located or intended to be located anywhere within
a
radius of thirty (30) miles of any Outback
Steakhouse restaurant
owned or operated by the Employer,
any of the Releasees,
or
any franchisee of any Releasee, and
their respective
subsidiaries
or affiliates, or any of the affiliates any of the foregoing, and
Employee
shall not act as an officer, director, employee, partner, independent
contractor, consultant, principal, agent, proprietor, or in any other
capacity for, nor lend any assistance (financial or otherwise) or
cooperation to, any such person, or entity.
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(B) |
Limitation.
Notwithstanding subsections (a), it shall not be a violation of this
paragraph (in
and of itself) for
Employee to own a one percent (1%) or smaller interest in any corporation
required to file periodic reports with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended,
or
successor statute,
if Employee does not otherwise violate the provisions of (A)
above.
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(C) |
Scope.
Nothing contained in this paragraph shall be construed as limiting
Employee’s ability to engage in any restaurant business other than the
casual steakhouse restaurant business. Casual steakhouse restaurant
shall
mean a restaurant primarily featuring steak on its menu, in its name
or in
its advertising and having an average per person check less than
$30.00.
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(ii)
Nondisclosure;
Nonsolicitation; Nonpiracy.
At
no time
shall Employee, individually or jointly with others, for the benefit of Employee
or any third party, publish, disclose, use, or authorize anyone else to publish,
disclose, or use, any secret or confidential material or information relating
to
any aspect of the business or operations of the Employer,
any of the Releasees,
or
their
respective
affiliates, including, without limitation, any secret or confidential
information relating to the business, customers, trade or marketing
practices, trade secrets, technology, recipes or know-how of any of the
employer,
any Releasee,
or
any
of
their respective
affiliates. Moreover, for a
continuous period of two
(2)
years
commencing upon expiration of the revocation period defined in paragraph 8
Employee
shall not,
directly or indirectly through others,
offer
employment to any employee of the Employer,
any Releasee,
or
their
respective
franchisees or affiliates, or otherwise solicit or induce any employee of the
Employer,
any Releasee,
or
their
respective
franchisees or affiliates to terminate their employment, nor shall Employee act
as an officer, director, employee, partner, independent contractor, consultant,
principal, agent, proprietor, owner or part owner, or in any other capacity,
for
any person or entity that solicits or otherwise induces any employee
at
the
rank of Joint Venture Partner or higher or any systematic solicitation of
employees at the rank of Managing Partner of
the
Employer
or its affiliates, any of the Releasees,
or
their
respective
franchisees or affiliates to terminate their employment.
(iii) Employer
Property:
Employee Duty to Return.
All
products, recipes, product specifications, marketing
materials, marketing plans and budgets, training
materials, employee
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selection
and testing materials, marketing and advertising materials, special event,
charitable and community activity materials, customer correspondence, internal
memoranda, products and designs, sales information, project files, price lists,
customer and vendor lists, prospectus reports, customer or vendor information,
sales literature, territory printouts, call books, notebooks, textbooks, and
all
other like information or products, including all copies, duplications,
replications, and derivatives of such information or products, now in the
possession of Employee or acquired by Employee while in the employ of the
Employer
or the Releasees,
shall
be the exclusive property of the Employer
and the Releasees
and
shall be returned to the Employer
no
later
than the date of execution
hereof.
(iv)
Restrictive
Covenants: Consideration; Non-Estoppel; Independent Agreements; and
Non-Executory Agreements.
The
restrictive covenants of paragraph
3 g)
are
given and made by Employee to induce the Employer
and Releasees to
enter
into this Agreement with the Employee, and Employee hereby acknowledges that
this
Agreement is
sufficient consideration for these restrictive covenants.
The
refusal or failure of the Employer
or the Releasees
to
enforce any restrictive covenant of
this
Agreement (or any similar agreement) against any other employee, agent, or
independent contractor, for any reason, shall not constitute a defense to the
enforcement by the
Employer or the Releasees
of any
such restrictive covenant, nor shall it give rise to any claim or cause of
action by Employee against the Employer
or Releasees.
(v) Reasonableness
of Restrictions; Reformation; Enforcement.
The
parties hereto recognize and acknowledge that the geographical and time
limitations contained in this
paragraph 3 g)
are
reasonable and properly required for the adequate protection of the Employer
and Releasees’s
interests.
It is
agreed by the parties hereto that if any portion of the restrictions contained
in this
paragraph 3 g)
are held
to be unreasonable, arbitrary, or against public policy, then the restrictions
shall be considered divisible, both as to the time and to the geographical
area,
with each month of the specified period being deemed a separate period of time
and each radius mile of the restricted territory being deemed a separate
geographical area, so that the lesser period of time or geographical area shall
remain effective so long as the same is not unreasonable, arbitrary, or against
public policy. The parties hereto agree that in the event any court of competent
jurisdiction determines the specified period or the specified geographical
area
of the restricted territory to be unreasonable, arbitrary, or against public
policy, a lesser time period or geographical area that is determined to be
reasonable, nonarbitrary, and not against public policy may be enforced against
Employee. If Employee shall violate any of the covenants contained herein and
if
any court action is instituted by the to prevent or enjoin such violation,
then
the period of time during which the Employee’s business activities shall be
restricted, as provided in this Agreement, shall be lengthened by a period
of
time equal to the period between the date of the Employee’s breach of the terms
or covenants contained in this Agreement and the date on which the decree of
the
court disposing of the issues upon the merits shall become final and not subject
to further appeal.
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In
the
event it is necessary for the Employer
or any Releasee
to
initiate legal proceedings to enforce, interpret or construe any of the
covenants contained in this
paragraph 3 g),
the
prevailing party in such proceedings shall be entitled to receive from the
non-prevailing party, in addition to all other remedies, all costs, including
reasonable attorneys’ fees, of such proceedings including appellate
proceedings.
(vi) Specific
Performance.
Employee
agrees that a breach of any of the covenants contained in this
paragraph 3 g)
will
cause irreparable injury to the Employer
and Releasees
for
which the remedy at law will be inadequate and would be difficult to ascertain
and therefore, in the event of the breach or threatened breach of any such
covenants, the Employer
and Releasees
shall be
entitled, in addition to any other rights and remedies it may have at law or
in
equity, to obtain an injunction to restrain Employee from any threatened or
actual activities in violation of any such covenants. Employee hereby consents
and agrees that temporary and permanent injunctive relief may be granted in
any
proceedings that might be brought to enforce any such covenants without the
necessity of proof of actual damages, and in the event the Employer
and Releasees
does
apply for such an injunction, Employee shall not raise as a defense thereto
that
the Employer
and Releasees
has an
adequate remedy at law.
4. |
Employer
promises and obligates itself to perform the following covenants
under
this Release:
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i) |
Employer
shall pay Employee the sum of Four Hundred Twenty Five Thousand Dollars
($425,000.00) as severance pay; payable within five (5) business
days
after expiration of the revocation period described in paragraph
8 hereof.
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ii) |
Employer
shall make all usual deductions and withholdings from the severance
pay
and shall give Employee a check stub showing the amounts deducted
or
withheld.
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b.) |
Employer
shall comply with all other terms of this Release as provided for
herein.
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5. |
Delivery
of the severance pay described in paragraph 4 shall constitute
satisfaction by Employer of any and all claims by Employee against
Employer and the Releasees. This Release specifically releases Employer
and its Releasees from any and all obligations arising out of Employee's
employment, including, but by no means limited to, claims arising
under
the Age Discrimination in Employment Act, the Civil Rights Act of
1964 (as
amended), the Americans with Disabilities Act, the Family Medical
Leave
Act, the Fair Labor Standards Act, the United States Constitution,
the
Florida Civil Rights Act, the Florida Workers Compensation Act, and
other
state and federal laws dealing with discrimination or workplace policies,
as well as claims for unpaid wages, unpaid commissions, breach of
contract, wrongful termination, retaliation, intentional
infliction
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of
emotional distress, negligent hiring, invasion of privacy, defamation,
slander, or any other tort arising out of the employment
relationship.
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6. |
Should
any portion of this settlement be alleged or found to violate any
federal,
state, or local law or regulation, Employee agrees to indemnify and
hold
harmless Employer and its Releasees for (a) any amounts they are
required
to pay as a result of such violation; (b) any amounts they agree
to pay to
settle any allegations of such violations; and (c) all reasonable
legal
fees or expenses that Employer or its Releasees incur in defending
this
settlement or their participation
therein.
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7. |
Employee
shall have a period of twenty-one calendar days (“the consideration
period”) from the date he is presented with this Release to consider the
Release’s terms and consequences before executing the Release. Employee is
not required to let the full consideration period elapse before executing
the Release; rather, the Release may be executed on any date within
the
consideration period.
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8. |
Employee
and Employer agree that Employee may revoke the Release for any reason
at
any time during the seven calendar days immediately following Employee’s
execution of the Release ("the revocation period"). To revoke this
Release, Employee must cause written notice of his intent to revoke
this
Release to be delivered to Employer’s Executive Vice President and General
Counsel, Xxxxxx X. Xxxxx, within the revocation period. This Release
shall
not become effective or enforceable until the revocation period has
expired without such notice having been delivered to
Employer.
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9. |
Employee
agrees that each of the following statements is truthful and accurate:
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a.) |
Employee
is of sound mind and body.
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b.) |
Employee
has sufficient education and experience to make choices for himself
that
may affect his legal rights.
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c.) |
Employee
has full legal capacity to make decisions for
himself;
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d.) |
Employee
is aware that this Release has significant legal
consequences.
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e.) |
Employee
has had the opportunity to consult with an attorney of his choice
prior to
signing this Release and has been advised by the Employer to take
advantage of this opportunity.
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f.) |
Employee
has decided to sign this Release of his own free will, and his decision
to
sign this Release has not been unduly influenced or controlled by
any
mental or emotional impairment or
condition.
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g.) |
Employee
is not executing this Release because of any duress or coercion imposed
on
him by anyone.
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10. |
Employee
represents that he has not sold, transferred, or assigned to a third
party
any claims that he may have. Employee represents that any claims
that he
may have are unencumbered and otherwise within his power to dispose
of.
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11. |
Except
as otherwise specifically provided herein, any and all prior
understandings and agreements between Employee and Employer with
respect
to the subject matter of this Release are merged into this Release,
which
fully and completely expresses the entire agreement and understanding
of
the parties with respect to the subject matter
hereof.
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12. |
This
Release shall not be orally amended, modified, or changed. No change,
amendment, or modification to the terms of this Release shall be
valid
unless such change, amendment, or modification is memorialized in
a
written agreement between the parties that has been signed by Employee
and
by duly authorized officers or representatives of
Employer.
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13. |
This
Release is made and entered into in the state of Florida, and shall
in all
respects be interpreted, enforced and governed under the laws of
Florida.
In the event of a breach of this Release by either party, the other
party
shall be entitled to seek enforcement of this Release exclusively
before a
state or federal court of competent jurisdiction located in Hillsborough
County, Florida. This Release shall not be construed to waive any
right of
removal that may apply to any action filed in state court by either
party
to this Release.
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14. |
In
the event a breach of the Release is proven, the non-breaching party
may
recover, in addition to damages, the reasonable costs and fees, including
attorney's fees, incurred in establishing the breach and securing
judicial
relief. In the event that the provisions of this Release are breached,
the
non-breaching party may recover damages for the breach without waiving
the
right to insist on the breaching party's continued fulfillment of
all
other obligations under the Release. If Employee breaches his obligations
under the Release, Employer shall have the right to terminate any
further
payments to Employee without discharging Employee from his responsibility
to continue to fulfill his obligations under the Release.
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15. |
The
language of all parts of this Release shall in all cases be construed
as a
whole, according to its fair meaning, and not strictly for or against
any
of the parties. As used in this Release, the singular or plural shall
be
deemed to include the other whenever the context so indicates or
requires.
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16. |
Should
any provision of this Release be declared or be determined by any
court to
be illegal or invalid, the remaining parts, terms or provisions shall
remain valid unless declared otherwise by the court. Any part, term
or
provision which is determined to be
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illegal
or invalid shall be deemed not to be a part of this
Release.
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PLEASE
READ CAREFULLY. THIS GENERAL RELEASE INCLUDES
A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Executed
at Tampa this 30th
day of
August,
2006.
EMPLOYEE
/s/
W.
Xxxxxx Donovan_______________ /s/
Xxxxxxxx Novello____________________
WITNESS
XXXXXXXX
XXXXXXX
Executed
at Tampa this 30th
day of
August,
2006.
EMPLOYER
/s/
W.
Xxxxxx Donovan______________ By:_/s/
Xxxxxx X. Xxxxx _______________
WITNESS
Title:_Executive Vice President_____________
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