OUTBACK STEAKHOUSE, INC. Officer Employment Agreement
Exhibit 99.1
OUTBACK
STEAKHOUSE, INC.
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into effective
March 8, 2005, by and among A.
XXXXXXX XXXXX, III, whose
address is 0000 Xxxxxx Xxxxxx Xx. X., Xxxxx, XX 00000 and
SSN
(hereinafter referred to as “Employee”),
OS
RESTAURANT SERVICES, INC., a
Delaware corporation having
its principal office at 0000 X. Xxxx Xxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxxx, Xxxxxxx 00000 (hereinafter
referred to as the
“Employer”) and OUTBACK
STEAKHOUSE, INC., a
Delaware corporation having
its principal office at 0000 X. Xxxx Xxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxxx, Xxxxxxx 00000 (the “Company”).
W I T N E
S S E T H:
This
Agreement is made and entered into under the following
circumstances:
A.
WHEREAS,
the Company and the Employer are affiliates of Outback Steakhouse, Inc. (“OSI”);
and
B. WHEREAS,
the Company is engaged in the business of owning and operating, through its
subsidiaries and their affiliates, various restaurant concepts utilizing
operating systems and trademarks owned by or licensed to the Company;
and
C. WHEREAS,
the Employer is an affiliate of the Company; and
D. WHEREAS,
the Employer desires, on the terms and conditions stated herein, to employ
Employee on behalf of the Company as Chief
Executive Officer of the
Company; and
E. WHEREAS,
the Employee desires, on the terms and conditions stated herein, to be employed
by the Employer on behalf of the Company as Chief
Executive Officer.
NOW,
THEREFORE, in consideration of the foregoing recitals, and of the premises,
covenants, terms and conditions contained herein, the parties hereto agree as
follows:
1. Employment
and Term.
Subject
to earlier termination as provided for in Section
8 hereof,
the Employer hereby employs the Employee, and the Employee hereby accepts
employment with the Employer, on behalf of the Company as Chief
Executive Officer of the
Company for a term commencing on March 8, 2005 and expiring March 31,
2015 (“Term
of Employment”).
2. Representations
and Warranties. The
Employee hereby represents and warrants to the Employer and the Company that the
Employee (i) is not subject to any written nonsolicitation
or noncompetition agreement affecting the Employee’s employment with the
Employer and the Company (other than any prior agreement with the Company), (ii)
is not subject to any written confidentiality or nonuse/nondisclosure agreement
affecting the Employee’s employment with the Employer and the Company (other
than any prior agreement with the Company), and (iii) has brought to the
Employer and the Company no trade secrets, confidential business information,
documents, or other personal property of a prior employer.
3. Duties. As
Chief
Executive Officer of the
Company, the Employee shall:
(a) diligently
and faithfully perform all of the duties and functions as may be assigned to the
Employee in such capacity by the Board of Directors of the Employer or the
Company; and
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(b) not to
create a situation that results in termination for “cause” as that term is
defined in Section
8
hereof.
The
Employee shall be required hereunder to devote one hundred percent (100%) of the
Employee’s full business time and effort to the business affairs of the Employer
and the Company. The Employee shall be responsible for directly reporting to the
Board of Directors of the Employer and the Company on all matters for which the
Employee is responsible.
The
Employee shall not, during the term of this Agreement, engage in any other
business activity; provided,
however, that the
Employee shall be permitted to invest the Employee’s personal assets and manage
the Employee’s personal investment portfolio in such a form and manner as will
not require any business services on Employee’s part to any third party
or
conflict with the provisions of Section
10,
Section
11 or
Section 15 hereof,
or conflict with any published policy of the Employer, the Company or their
affiliates, including but not limited to the xxxxxxx xxxxxxx policy of the
Company or its affiliates.
Notwithstanding
the foregoing, Employee shall also be permitted to participate in customary
civic and professional activities that will not, in the opinion of the Employer,
materially affect Employee’s performance of his duties hereunder. Employee may
continue to serve on the advisory board of companies in which Employee has
invested (with Employer’s prior written consent as required by Section
10(a)) as long
as the business of such companies is not competitive with that of the Company,
any subsidiary of the Company, or any of their affiliates. Employee shall not
serve on the board of directors of any other company without the prior consent
of the Company, which shall not be unreasonably withheld.
Notwithstanding
anything to the contrary herein, the parties acknowledge and agree that the
Employee shall, during the term of this Agreement and at the request of the
Employer or the Company, also serve as an officer of any subsidiary or affiliate
of the Employer or the Company as the Employer or the Company shall request. In
such capacity, Employee shall be responsible generally for all aspects of such
office. All terms, conditions, rights and obligations of this Agreement shall be
applicable to Employee while serving in such office as though Employee and such
subsidiary or affiliate of the Employer or the Company had separately entered
into this Agreement, except that the Employee shall not be entitled to any
compensation, vacation, fringe benefits, automobile allowance or other
remuneration of any kind whatsoever from such subsidiary or affiliate of the
Employer or the Company.
4. Compensation.
a. Signing
Bonus. Employee
shall be entitled to a one-time signing bonus of Two Million Dollars
($2,000,000) payable on May 2, 2005.
b. Base
Salary. During
the Term of Employment, the Employee shall be entitled to an annual base salary
equal to Seven Hundred and Fifty Thousand Dollars ($750,000), payable in equal
biweekly installments by the Employer, to be reviewed annually by the
Employer.
c. Bonus.
During
the Term of Employment, the Employee shall be entitled to discretionary bonuses
pursuant to a bonus plan to be developed by the Compensation Committee of the
Company.
5. Vacation.
Employee
shall be entitled to three
(3) weeks
paid vacation (selected by Employee, but subject to the reasonable business
requirements of the Company and the Employer as determined by Employee’s
supervisor) during each full year during the Term of Employment. Vacation
granted but not used in any year shall be forfeited at the end of such one-year
period and may not be carried over to any subsequent year.
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6. Fringe
Benefits.
In
addition to any other rights the Employee may have hereunder, the Employee shall
also be entitled to receive those fringe benefits, including, but not limited
to, complimentary food, life insurance, medical benefits, etc., if any,
as may be provided by the Employer to similar senior executives of the Employer.
Employee shall be included in the Company’s director and officer insurance and
indemnification policies. The Employee shall not be entitled to any benefits of
any kind provided by the Company to its employees.
7.
Expenses.
Subject
to approval by the Chief Financial Officer of the Company and the Employer and
compliance with the Company’s and the Employer’s policies, the Employee may
incur reasonable expenses on behalf of and in furtherance of the business of the
Company and the Employer. Upon approval of such expenses by the Chief Financial
Officer, the Company or the Employer, as applicable, shall promptly reimburse
the Employee for all such expenses upon presentation by the Employee, from time
to time, of appropriate receipts or vouchers for such expenses that are
sufficient in form and substance to satisfy all federal tax requirements for the
deductibility of such expenses by the Company or the Employer, as
applicable.
8. Termination.
Notwithstanding
the provisions of Section
1 hereof,
the Term of Employment shall terminate prior to the end of the period of time
specified in Section
1,
immediately upon:
(a) The death
of the Employee; or
(b) The
Employee’s Disability during the Term of Employment. For purposes of this
Agreement, the term “Disability” shall mean the inability of the Employee,
arising out of any medically determinable physical or mental impairment, to
perform the services required of the Employee hereunder for a period of ninety
(90) consecutive days; or
(c) The
existence of Cause. For purposes of this Agreement, the term “Cause” shall be
defined as:
(i) the
conviction of or a plea of guilty by the Employee to a felony;
(ii) willful
misrepresentation of material fact by the Employee in connection with the
performance of his duties hereunder;
(iii) failure
of or refusal on the part of the Employee to substantially perform all of his
duties hereunder, which failure or refusal shall not be cured within fifteen
(15) days following (A) receipt by the Employee of a written notice specifying
the factors or events constituting such failure or refusal, and (B) a reasonable
opportunity for the Employee to correct such deficiencies; or
(iv) other
material breach of this Agreement by the Employee, which breach shall not be
cured within fifteen
(15) days
after written notice thereof to the Employee.
(v) Any
violation of any covenant or restriction contained in Section
10, Section 11, Section 13 or
Section 15 hereof;
or
(vi) Any
violation of any material published policy of the Employer, the Company or their
affiliates (material published policies include, but are not limited to, the
Company’s discrimination and harassment policy, responsible alcohol policy and
xxxxxxx xxxxxxx policy); or
(d) at the
election of the Employer, at any time; or
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(e) At the
election of the Employer, upon the determination by the Company to cease the
Company’s business operations.
For all
purposes of this Agreement, termination for Cause shall be deemed to have
occurred in the event of the Employee’s resignation when, because of existing
facts and circumstances, subsequent termination for Cause can be reasonably
foreseen.
In the
event of termination of this Agreement pursuant to this Section
8, the
Employee or the Employee’s estate, as appropriate, shall be entitled to receive
(in addition to any fringe benefits payable upon death in the case of the
Employee’s death) the base salary provided for herein up to and including the
effective date of termination, prorated on a daily basis.
9. Severance.
(a)General. In the
event of termination of this Agreement pursuant to Section
8, the
Employee or the Employee’s estate, as appropriate, shall be entitled to receive
(in addition to any fringe benefits payable upon death in the case of the
Employee’s death) the base salary provided for herein up to and including the
effective date of termination (the “Termination Effective Date”), prorated on a
daily basis. Except as provided in subsection (b) below, Employee shall not be
entitled to receive any severance compensation.
(b)Severance. In the
event of termination of this Agreement prior to December 31, 2009 by the
Employer pursuant to Section
8(d), Employee
shall receive as severance compensation Five Millions Dollars ($5,000,000),
payable on the date of termination.
(c)Termination
of Right to Severance. The
Company and the Employer shall be released from any obligation to pay severance
compensation under Subsection
(b) if the
Employee is continuously employed as Chief Executive Officer of the Company
through December 31, 2009.
10. Noncompetition.
(a) During
Term. Except
with the prior written consent of the Employer, during the Employee’s employment
with the Employer, the 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 interest in
any person or entity engaged in a restaurant business, and the 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.
(b) Post
Term. For a
continuous period of two (2) years commencing on termination of the
Employee’s employment with the Employer, regardless of any termination pursuant
to Section
8 or any
voluntary termination or resignation by the
Employee, the 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 interest in any person or entity engaged in a
restaurant business that is located or intended to be located anywhere within a
radius of thirty (30) miles of any restaurant owned or operated by the Employer,
the Company, any subsidiary of the Company, or any of their affiliates, or any
proposed restaurant to be owned or operated by 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. For purposes of this Section
10(b),
restaurants owned or operated by the Employer, the Company or any subsidiary of
the Company shall include restaurants operated or owned by an affiliate of the
Employer, the Company or any subsidiary of the Company, any successor entity to
the Employer, the Company or any subsidiary of the Company, and any entity in
which the Employer, the Company, any subsidiary of the Company, or any of their
affiliates has an interest, including but not limited to, an interest as a
franchisor. The term “proposed restaurant” shall include all locations for which
the Employer, the Company, any subsidiary of the Company, or their franchisees
or affiliates is conducting active, bona fide negotiations to secure a fee or
leasehold interest with the intention of establishing a restaurant
thereon.
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(c) Limitation.
Notwithstanding subsections
(a) and
(b), it
shall not be a violation of this Section
10 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.
11. Nondisclosure;
Nonsolicitation; Nonpiracy.
Except in
the performance of Employee’s duties hereunder, at no time during the Term of
Employment, or at any time thereafter, 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, the Company, any subsidiary of the Company, or their
affiliates, including, without limitation, any secret or confidential
information relating to the business, customers, trade or industrial practices,
trade secrets, technology, recipes or know-how of any of the Employer, the
Company, any subsidiary of the Company, or their affiliates. Moreover, during
the Employee’s employment with the Company and for two (2) years thereafter,
Employee shall not offer employment to any employee of the Employer, the
Company, any subsidiary of the Company, their franchisees or affiliates, or
otherwise solicit or induce any employee of the Employer, the Company, any
subsidiary of the Company, their 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 of the Employer, the Company, any subsidiary of
the Company, their franchisees or affiliates to terminate their
employment.
12. Employer
or Company Property: Employee Duty to Return. All
Employer or Company products, recipes, product specifications, training
materials, employee 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 Company, shall be the
exclusive property of the Employer and the Company and shall be returned to the
Employer or the Company no later than the date of Employee’s last day of work
with the Employer or the Company.
13. Inventions,
Ideas, Processes, and Designs. All
inventions, ideas, recipes, processes, programs, software, and designs
(including all improvements) (i) conceived or made by Employee during the course
of Employee’s employment with the Employer or the Company (whether or not
actually conceived during regular business hours) and for a period of six (6)
months subsequent to the termination or expiration of such employment and (ii)
related to the business of the Employer or the Company, shall be disclosed in
writing promptly to the Employer and the Company and shall be the sole and
exclusive property of the Employer and the Company. An invention, idea, recipe,
process, program, software or design (including an improvement) shall be deemed
“related to the business of the Employer or the Company” if (a) it was made with
equipment, supplies, facilities, or confidential information of the Employer or
the Company, (b) results from work performed by Employee for the Employer or the
Company, or (c) pertains to the current business or demonstrably anticipated
research or development work of the Employer or the Company. Employee shall
cooperate with the Employer and the Company and their attorneys in the
preparation of patent and copyright applications for such developments and, upon
request, shall promptly assign all such inventions, ideas, recipes, processes,
and designs to the Employer or the Company. The decision to file for patent or
copyright protection or to maintain such development as a trade secret shall be
in the sole discretion of the Employer and the Company, and Employee shall be
bound by such decision. Employee shall provide, on the back of this Employment
Agreement, a complete list of all inventions, ideas, recipes, processes, and
designs if any, patented or unpatented, copyrighted or non-copyrighted,
including a brief description, that the Employee made or conceived prior to
Employee’s employment with the Employer and the Company and that therefore are
excluded form the scope of this Agreement.
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14. Employer’s
and Company’s Promise to Give Employee Trade Secrets and
Training. In
return for Employee’s agreement not to use or disclose Employer’s or the
Company’s trade secrets, training, systems and confidential proprietary business
methods, Employer and the Company unconditionally promise to give Employee
within ninety (90) days of the signing of this contract trade secrets,
specialized training and other confidential proprietary business
methods.
Specifically,
Employer and the Company unconditionally promise to give Employee one-on-one
training from executives, trainers, and senior employees of Employer, the
Company or their affiliates. Further, the training will include training and
information concerning procedures and confidential proprietary methods Employer
and the Company use to obtain and retain business from their customer base,
operations in Employer’s and the Company’s home office, marketing and sales
techniques, and information regarding the confidential information listed in
Section
10(b) of this
Agreement. Further, after the ninety (90) days, as Employer and the Company
develop (during Employee’s employment with Employer) additional trade secrets,
employee surveys and analyses, financial data and other confidential proprietary
business methods and overall marketing plans and strategies, Employer and the
Company promise to continue to provide, on a periodic basis, said confidential
information and additional training and analysis from their executives, trainers
and/or senior employees to Employee for so long as Employee is employed by
Employer as Chief
Executive Officer.
15. Employee’s
Promise Not to Disclose Trade Secrets and Confidential
Information. Employee
understands and agrees that Employer and the Company will provide unique and
specialized training and confidential information concerning Employer’s and the
Company’s business operations, including, but not limited to, recipes, product
specifications, restaurant operating techniques and procedures, marketing
techniques and procedures, financial data, processes, vendors and other
information that was developed and maintained at considerable effort and expense
to Employer and the Company, for the Employer’s and the Company’s sole and
exclusive use, and which if used by the Employer’s or the Company’s competitors
would give them an unfair business advantage. Employee believes the
unconditional promise to provide said information is sufficient consideration
for Employee’s promise to adhere to the restrictive covenants of Section
10, Section 11,
Section
13, and
Section
15 of this
Agreement.
16. Restrictive
Covenants: Consideration; Non-Estoppel; Independent Agreements; and
Non-Executory Agreements.
The
restrictive covenants of
Section 10, Section 11, Section 13 and
Section 15 of this
Agreement are given and made by Employee to induce the Employer to employ the
Employee and to enter into this Agreement with the Employee, and Employee hereby
acknowledges that employment with the Employer is sufficient consideration for
these restrictive covenants.
The
restrictive covenants of Section
10, Section 11, Section 13 and
Section 15 of this
Agreement shall be construed as agreements independent of any other provision in
this Agreement, and the existence of any claim or cause of action of Employee
against the Employer or the Company, whether predicated upon this Agreement or
otherwise, shall not constitute a defense to the enforcement of any restrictive
covenant. The Employer and the Company have fully performed all obligations
entitling them to the restrictive covenants of Section
10, Section 11, Section 13, and
Section 15 of this
Agreement, and those restrictive covenants therefore are not executory or
otherwise subject to rejection under the Bankruptcy Code.
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The
refusal or failure of the Employer or the Company to enforce any restrictive
covenant of Section
10, Section 11, Section 13 or
Section 15 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 Company of any such restrictive covenant, nor
shall it give rise to any claim or cause of action by Employee against the
Employer or the Company.
17. Reasonableness
of Restrictions; Reformation; Enforcement. The
parties hereto recognize and acknowledge that the geographical and time
limitations contained in Section
10, Section 11, Section 13 and
Section 15 hereof
are reasonable and properly required for the adequate protection of the
Company’s and the Employer’s interests. Employee acknowledges that the Company
is the owner or the licensee of various trademarks, and the owner or the
licensee of various restaurant operating systems and will provide to Employee
training in and confidential information concerning such restaurant operating
systems in reliance on the covenants contained in Section
10, Section 11, Section 13 and
Section 15 hereof.
It is agreed by the parties hereto that if any portion of the restrictions
contained in Section
10, Section 11, Section 13 or
Section 15 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 Company or the Employer 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.
In the
event it is necessary for the Company or the Employer to initiate legal
proceedings to enforce, interpret or construe any of the covenants contained in
Section
10, Section 11, Section 13 or
Section 15 hereof,
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.
18. Specific
Performance.
Employee
agrees that a breach of any of the covenants contained in Section
10, Section 11, Section 13 or
Section 15 hereof
will cause irreparable injury to the Company and the Employer 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 Company and the Employer shall be entitled, in addition to any
other rights and remedies they 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 Company or the Employer does apply for such
an injunction, Employee shall not raise as a defense thereto that the Company or
the Employer has an adequate remedy at law.
19. Restriction
on Transfer.
The
parties acknowledge that AWA III STEAKHOUSES, INC., a California corporation
(“AWA”) is the owner of a membership interest in OUTBACK/FLEMING’S, LLC (the
“LLC”). A trust in which Employee is a grantor and trustee is the sole
shareholder of AWA. Employee acknowledges that he is familiar with, and has
agreed to, the restrictions on transfer, purchase options, and rights of first
refusal concerning the membership interests in the LLC (the “LLC Interests”)
that are provided in the Operating Agreement of the LLC. Employee and AWA hereby
covenant and agree that Employee and/or AWA shall not nor will Employee permit
AWA to: sell, assign, convey, give, transfer, pledge, hypothecate or otherwise
alienate, dispose of or encumber, voluntarily or by operation of law, any LLC
Interest or capital stock of AWA, now owned or hereafter acquired, or any right,
title or interest therein, during the period of the purchase options and right
of first refusal contained in the Operating Agreement of the LLC or in this
Employment Agreement.
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20. Right
of First Refusal.
If, at
any time after the expiration or termination of Employee’s employment with the
Employer, Employee or AWA desires to transfer any LLC Interest, Employee and AWA
shall, prior to any such transfer, give Prime written notice of such desire
(“Transfer Notice”), which Transfer Notice shall specify the LLC Interest to be
transferred, the identity of the proposed transferee, the purchase price of the
LLC Interest to be transferred and the terms for payment of said purchase price
(“Purchase Price”). Any purported Transfer Notice that does not comply with the
requirements of this Section
20 shall be
null and void and of no effect hereunder. Upon receipt of a proper Transfer
Notice, Prime shall have the right to acquire Employee’s and AWA’s entire LLC
Interest or such portion of the LLC Interest as is specified in the Transfer
Notice, on terms identical to the Purchase Price or proportionately identical if
Prime elects to purchase the entire LLC Interest. In the event the Purchase
Price contains terms that Prime cannot reasonably duplicate, Prime shall have
the right to substitute the reasonable cash equivalent thereof.
(a) Prime
shall exercise the right of first refusal provided herein by mailing written
notice thereof (“Election Notice”) to Employee and AWA within thirty (30) days
of the date of receipt of the Transfer Notice, stating whether Prime has elected
to purchase the entire LLC Interest of Employee and AWA or such portion as was
specified in the Transfer Notice, if less. In the event Prime- fails to mail the
Election Notice to Employee within said thirty (30) day period, Prime’s rights
under this Section 20 shall
lapse [except as provided in Subsection (b)].
(b) The
closing for any purchase hereunder shall be consummated and closed on a date and
at a place designated by Prime in a notice (“Closing Notice”) to AWA, provided
such consummation and closing date shall occur within sixty (60) days from the
date of mailing of the Election Notice. At such closing, Employee and AWA shall
execute and deliver all documents and instruments as are necessary and
appropriate, in the opinion of counsel for Prime, to effectuate the transfer of
the LLC Interest to Prime in accordance with the terms of the Transfer Notice
and Prime shall deliver the Purchase Price to AWA hereunder in immediately
available funds. In the event Employee has any outstanding debts to Prime, such
debts, including any accrued interest, shall be repaid from the Purchase Price
at closing. In the event Prime does not elect pursuant to the provisions herein
to exercise its rights specified herein, or in the event the closing for any
purchase pursuant to the provisions herein does not occur within the time limits
specified herein, then AWA shall be free to transfer the exact portion of its
LLC Interest as was specified in the Transfer Notice to the person or entity
identified in the Transfer Notice in exchange for the exact Purchase Price as
was specified in the Transfer Notice, provided, however, that the closing and
consummation of such transfer shall occur within one hundred thirty (130) days
after the date of mailing of the Transfer Notice. In the event such transfer is
not so closed and consummated within such period, the purchase option granted to
Prime herein shall again be exer-cisable and Employee shall make no Transfer of
any portion of his Interest, or any right, title or interest therein, until he
has again complied with all terms and provisions of this Section 20.
21. Effect
of Termination.
The
termination of this Agreement, for whatever reason, or the expiration of this
Agreement shall not extinguish those obligations of Employee specified in
Section
10,
Section
11,
Section
12, Section 13 and
Section
15 hereof.
The restrictive covenants of Section
10, Section 11, Section 12, Section 13, and
Section 15 shall
survive the termination or expiration of this Agreement. The termination or
expiration of this Agreement shall extinguish the right of any party to bring an
action, either in law or in equity, for breach of this Agreement by any other
party.
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22. Captions;
Terms.
The
captions of this Agreement are for convenience only, and shall not be construed
to limit, define, or modify the substantive terms hereof.
23. Acknowledgments.
Employee hereby acknowledges that the Employee has been provided with a copy of
this Agreement for review prior to signing it, that the Employee has been given
the opportunity to have this Agreement reviewed by Employee’s attorney prior to
signing it, that the Employee understands the purposes and effects of this
Agreement, and that the Employee has been given a signed copy of this Agreement
for Employee’s own records.
24. Notices.
All
notices or other communications provided for herein to be given or sent to a
party by the other party shall be deemed validly given or sent if in writing and
mailed, postage prepaid, by certified United States mail, return receipt
requested, addressed to the parties at their addresses hereinabove set forth.
Any party may give notice to the other party at any time, by the method
specified above, of a change in the address at which, or the person to whom,
notice is to be addressed.
25. Severability.
Each
section, subsection, and lesser Section of this Agreement constitutes a separate
and distinct undertaking, covenant, or provision hereof. In the event that any
provision of this Agreement shall be determined to be invalid or unenforceable,
such provision shall be deemed limited by construction in scope and effect to
the minimum extent necessary to render the same valid and enforceable, and, in
the event such a limiting construction is impossible, such invalid or
unenforceable provision shall be deemed severed from this Agreement, but every
other provision of this Agreement shall remain in full force and
effect.
26. Waiver.
The
failure of a party to enforce any term, provision, or condition of this
Agreement at any time or times shall not be deemed a waiver of that term,
provision, or condition for the future, nor shall any specific waiver of a term,
provision, or condition at one time be deemed a waiver of such term, provision,
or condition for any future time or times.
27. Parties.
This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their legal representatives, and proper successors or assigns, as the
case may be.
28. Governing
Law.
The
validity, interpretation, and performance of this Agreement shall be governed by
the laws of the State of Florida without giving effect to the principles of
comity or conflicts of laws thereof.
29. Consent
to Personal Jurisdiction and Venue.
Employee
hereby consents to personal jurisdiction and venue, for any action brought by
the Employer or the Company arising out of a breach or threatened breach of this
Agreement or out of the relationship established by this Agreement, exclusively
in the United States District Court for the Middle District of Florida, Tampa
Division, or in the Circuit Court in and for Hillsborough County, Florida;
Employee hereby agrees that any action brought by Employee, alone or in
combination with others, against the Employer or the Company, whether arising
out of this Agreement or otherwise, shall be brought exclusively in the United
States District Court for the Middle District of Florida, Tampa Division, or in
the Circuit Court in and for Hillsborough County, Florida.
30. Affiliate.
Whenever
used in this Agreement, the term “affiliate” shall mean, with respect to any
entity, all persons or entities (i) controlled by the entity, (ii) that control
the entity, or (iii) that are under common control with the entity.
9
31. Cooperation.
Employee shall cooperate fully with all reasonable requests for information and
participation by the Employer or the Company, their agents, or their attorneys,
in prosecuting or defending claims, suits, and disputes brought on behalf of or
against one or both of them and in which Employee is involved or about which
Employee has knowledge.
32. Amendments. No
change, modification, or termination of any of the terms, provisions, or
conditions of this Agreement shall be effective unless made in writing and
signed or initialed by all signatories to this Agreement.
33. WAIVER
OF JURY TRIAL.
ALL
PARTIES TO THIS AGREEMENT KNOW AND UNDERSTAND THAT THEY HAVE A CONSTITUTIONAL
RIGHT TO A JURY TRIAL. THE PARTIES ACKNOWLEDGE THAT ANY DISPUTE OR CONTROVERSY
THAT MAY ARISE OUT OF THIS AGREEMENT WILL INVOLVE COMPLICATED AND DIFFICULT
FACTUAL AND LEGAL ISSUES.
THE
PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH
WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR
AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY
PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
THE
PARTIES INTEND THIS WAIVER OF THE RIGHT TO A JURY TRIAL BE AS BROAD AS POSSIBLE.
BY THEIR SIGNATURES BELOW, THE PARTIES PROMISE, WARRANT AND REPRESENT THAT THEY
WILL NOT PLEAD FOR, REQUEST OR OTHERWISE SEEK TO HAVE A JURY TO RESOLVE ANY AND
ALL DISPUTES THAT MAY ARISE BY, BETWEEN OR AMONG THEM.
34. Entire
Agreement; Counterparts.
This
Agreement and the agreements referred to herein constitute the entire agreement
between the parties hereto concerning the subject matter hereof, and supersede
all prior memoranda, correspondence, conversations, negotiations and agreements.
This Agreement may be executed in several identical counterparts that together
shall constitute but one and the same Agreement.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
|
“EMPLOYEE” | |
|
_______________________________________ |
_________________________________________ |
|
Witness |
A.
XXXXXXX XXXXX, III |
|
_______________________________________ |
|
|
Witness |
10
|
“EMPLOYER” | |
|
Attest: |
OS
RESTAURANT SERVICES, INC., |
|
a
Delaware corporation | |
|
By:
_____________________________________ |
By:
_____________________________________ |
|
XXXXXX
X. XXXXX, Secretary |
XXXXXX
X. XXXXXXX, Senior Vice President |
|
“COMPANY” | |
|
Attest: |
OUTBACK
STEAKHOUSE, INC. |
|
a
Delaware corporation | |
|
By:
_____________________________________ |
By:
_____________________________________ |
|
XXXXXX
X. XXXXX, Secretary |
XXXXXX
X. XXXXXXX, Senior Vice President |
JOINDER OF AWA
AWA III
Steakhouses, Inc., a California corporation (“AWA”) hereby agrees to be bound
by, perform and comply with all restrictions, agreements, covenants, and
obligations applicable to AWA contained in Section
19 and
Section 20 of this
Agreement.
|
Attest: |
AWA
III STEAKHOUSES, INC. |
|
By:
_____________________________________ |
By:
_____________________________________ |
|
,
Secretary |
A.
XXXXXXX XXXXX, III President |
