Assignment and Amendment and Restatement of Officer Employment Agreement
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Exhibit
10.26
Assignment
and Amendment and Restatement of
THIS
ASSIGNMENT and AMENDMENT AND RESTATEMENT OF EMPLOYMENT AGREEMENT (the
“Agreement”) is made and entered into this 26th day of March 2009, to be
effective for all purposes as of February 5, 2008, by and among ▇▇▇▇ ▇▇▇▇▇▇
(hereinafter referred to as “Employee”) and OUTBACK STEAKHOUSE OF FLORIDA, LLC,
a Florida limited liability company formerly known as OUTBACK STEAKHOUSE OF
FLORIDA, INC., having its principal office at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Former Employer”) and OSI RESTAURANT PARTNERS,
LLC, a Delaware limited liability company, having its principal office at ▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (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 is engaged in the business of owning and operating, through its
subsidiaries and their affiliates, various restaurant concepts utilizing
restaurant operating systems and trademarks owned by or licensed to the Company;
and
B. WHEREAS,
the Company is the sole manager and member of the Former Employer;
and
C. WHEREAS,
the Former Employer and the Employee are parties to that certain Officer
Employment Agreement dated effective October 1, 2006 (the “Original Agreement”),
pursuant to which, the Company employed Employee as Chief Brand Officer of the
Former Employer; and
D. WHEREAS,
the Former Employer desires, on the terms and conditions stated herein, to
assign the Employee’s Employment to the Company; and
E. WHEREAS,
the Company desires, on the terms and conditions stated herein, to accept the
assignment of the Employee’s Original Agreement from the Former Employer and to
amend and restate the Original Agreement as a result of Employee’s promotion to
Chief Brand Officer of the Company; and
F. WHEREAS,
the Employee desires, on the terms and conditions stated herein, to be employed
by the Company as Chief Brand Officer of the Company.
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 Company
hereby employs the Employee, and the Employee hereby accepts employment with the
Company as Chief Brand Officer of the Company for a term commencing on February
5, 2008 and expiring on October 1, 2011 (“Term of Employment”). Such Term of
Employment shall be automatically renewed for successive renewal terms of one
(1) year each unless either party elects not to renew by giving written notice
to the other party not less than sixty (60) days prior to the start of any
renewal term.
2. Representations
and Warranties. The Employee hereby represents and warrants to the
Company that the Employee (i) is not subject to any written nonsolicitation or
noncompetition agreement affecting the Employee’s employment with 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
Company
(other than any prior agreement with the Company), and (iii) has brought to the
Company no trade secrets, confidential business information, documents, or other
personal property of a prior employer.
3. Duties.
As Chief Brand Officer of the Company, the Employee shall:
(a) diligently,
competently and faithfully perform all of the duties and functions as are
customary to such position and as may be assigned to the Employee in such
capacity by the Board of Directors, Chief Executive Officer or President of the
Company;
(b) not
create a situation that results in termination for Cause (as that term is
defined in Section 8
hereof);
(c) be
responsible for directly reporting to the President or Chief Executive Officer
of the Company on all matters for which the Employee is
responsible;
(d) conduct
all of her activities in a manner so as to maintain and promote the business and
reputation of the Company; and
(e) devote
one hundred percent (100%) of the Employee’s full business time, attention,
energies and effort to the business affairs of the Company. 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 9, Section 10 or Section 14 hereof, or
conflict with any published policy of the Company or its affiliates, including
but not limited to the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy of the Company or its
affiliates.
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
Company, also serve as an officer of any subsidiary or affiliate of the Company
as 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 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 Company.
4. Compensation.
a. Salary. During the Term of Employment, the
Employee shall be entitled to an annual base salary equal to the annual salary
of Employee on the effective date hereof, payable in equal biweekly installments
by the Company, to be reviewed for increase or decrease annually by the
Company.
b. Bonus. During the Term of Employment, the
Employee shall be entitled to discretionary bonuses pursuant to a bonus plan as
may be provided by the Company to similar employees 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 as determined by the Chief
Executive Officer of the Company) 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.
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 Company to similar employees of the Company. Such benefits shall
be provided in accordance with any applicable policy, program or plan
provisions. Any taxable welfare benefits provided to the Employee
pursuant to this Section
6 that are not ‘disability pay’ or ‘death benefits’ within the meaning of
Treasury Regulations Section 1.409A-1(a)(5) (collectively, the ‘Applicable
Benefits’) shall be subject to the following requirements in order to comply
with Section 409A of the Internal Revenue Code of 1986, as amended (the
"Code"). The amount of any Applicable Benefits provided during one
taxable year shall not affect the amount of the Applicable Benefits provided in
any other taxable year, except that with respect to any Applicable Benefits that
consist of the reimbursement of expenses referred to in Code Section 105(b), a
limitation may be imposed on the amount of such reimbursements as described in
Treasury Regulations Section 1.409A-3(i)(iv)(B). To the extent that
any Applicable Benefits consist of the reimbursement of eligible expenses, such
reimbursement must be made on or before the last day of the calendar year
following the calendar year in which the expense was incurred, and Company shall
not be obligated to reimburse any expense for which the Employee fails to submit
an invoice or other documented reimbursement request at least thirty (30)
business days before the end of the calendar year next following the calendar
year in which the expense for any such reimbursement was
incurred. Further, no Applicable Benefits may be liquidated or
exchanged for another benefit.
7. Expenses. Subject to approval by the
Chief Financial Officer of the Company and compliance with the Company’s
policies, the Employee may incur reasonable expenses on behalf of and in
furtherance of the business of the Company. Upon approval of such expenses by
the Chief Financial Officer, the Company 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. If any reimbursements under this provision or
under Section 6 are
taxable to the Employee, such reimbursements shall be paid on or before the end
of the calendar year following the calendar year in which the reimbursable
expense was incurred, and the Company shall not be obligated to pay any such
reimbursement amount for which Employee fails to submit an invoice or other
documented reimbursement request at least thirty (30) business days before the
end of the calendar year next following the calendar year in which the expense
was incurred. Such expenses, under this provision or under Section 6, shall be
reimbursable only to the extent they were incurred during the term of the
Agreement. In addition, the amount of such reimbursements under this
provision or under Section
6 that the Company is obligated to pay in any given calendar year shall
not affect the amount the Company is obligated to pay in any other calendar
year. Further, Employee may not liquidate or exchange the right to
reimbursement of such expenses, under this provision or under Section 6, for any other
benefits.
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) Failure
of the Employee to perform the duties assigned to the Employee in a manner
satisfactory to the Company, in its sole discretion; provided, however, that the
Term of Employment shall not be terminated pursuant to this
subparagraph (i) unless the Company first
gives the
Employee a written notice (“Notice of Deficiency”). The Notice of Deficiency
shall specify the deficiencies in the Employee’s performance of the Employee’s
duties. The Employee shall have a period of thirty (30) days, commencing on
receipt of the Notice of Deficiency, in which to cure the deficiencies contained
in the Notice of Deficiency. In the event the Employee does not cure the
deficiencies to the satisfaction of the Company, in its sole discretion, within
such thirty (30) day period (or if during such thirty (30) day period the
Company determines that the Employee is not making reasonable, good faith
efforts to cure the deficiencies to the satisfaction of the Company), the
Company shall have the right to immediately terminate the Term of Employment.
The provisions of this subparagraph (i) may be invoked by the Company any
number of times and cure of deficiencies contained in any Notice of Deficiency
shall not be construed as a waiver of this subparagraph (i) nor prevent the
Company from issuing any subsequent Notices of Deficiency; or
(ii) Any
dishonesty by the Employee in the Employee’s dealings with the Company or the
Company, the commission of fraud by the Employee, negligence in the performance
of the duties of the Employee, insubordination, willful misconduct, or the
conviction (or plea of guilty or nolo contendere) of the Employee of any felony,
or any other crime involving dishonesty or moral turpitude; or
(iii) Any
violation of any covenant or restriction contained in Section 9, Section 10, Section 12
or Section 14
hereof; or
(iv) Any
violation of any material published policy of the Company or its affiliates
(material published policies include, but are not limited to, the Company’s
discrimination and harassment policy, responsible alcohol policy and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ policy).
(d) At the
election of the Company, upon the sale of a majority ownership interest in the
Company or substantially all of the assets of the Company; or
(e) At the
election of the Company, upon the determination by the Company to cease the
Company’s business operations.
(f) At the
election of the Company in its sole discretion, for any reason or no reason. In
the event of termination of this Agreement pursuant to this Section 8(f), the Employee
shall be entitled to receive as full and complete severance compensation, the
base salary provided for herein for a period of one (1) year from the effective
date of such termination (the “Severance”). Severance shall be payable in
bi-weekly installments. The Employee acknowledges and agrees that in the event
of termination of this Agreement pursuant to this Section 8(f) the Severance
provided in this Section
8(f) shall be the only obligation that the Company, or any of its
affiliates shall have to the Employee.
(g) Termination
of Employment for all purposes under this Agreement will be determined to have
occurred in accordance with the ‘separation from service’ requirements of Code
Section 409A and the Treasury Regulations and other guidance issued thereunder,
and based on whether the facts and circumstances indicate that Company and
Employee reasonably anticipated that no further services would be performed
after a certain date or that the level of bona fide services Employee would
perform after such date (as an employee or as an independent contractor) would
permanently decrease to no more than 20 percent of the average level of bona
fide services performed over the immediately preceding 36-month period (or
actual period of service, if less).
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.
Except as
otherwise provided in Section
8(f), 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. Noncompetition.
(a) During Term. During
the Employee’s employment with the Company, 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 Company, 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 with
a theme, décor, menu or style of or featured cuisine the same as or
substantially similar to that of any restaurant owned or operated by the
Company, or any of its affiliates, and that is located or intended to be located
anywhere within a radius of thirty (30) miles of any restaurant owned or
operated by the Company, or any of its 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 9(b), Restaurants
owned or operated by the Company shall include restaurants operated or owned by
an affiliate of the Company, any successor entity to the Company, and any entity
in which the Company, or any of its 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 Company, or its franchisees or
affiliates is conducting active, bona fide negotiations to secure a fee or
leasehold interest with the intention of establishing a restaurant
thereon.
(c) Limitation.
Notwithstanding subsections
(a) and (b), it
shall not be a violation of this Section 9 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.
10. 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 Company,
or its 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 Company, or its
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 Company, its franchisees or affiliates, or otherwise solicit or induce any
employee of the Company, its 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 Company, its franchisees or affiliates to
terminate their employment.
11. Company
Property: Employee Duty to Return. All 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 Company, shall be the
exclusive property of the Company and shall be returned to the Company no later
than the date of Employee’s last day of work with the Company.
12. 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 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 Company, shall be disclosed
in writing promptly to the Company and shall be the sole and exclusive property
of the Company. An invention, idea, recipe, process, program, software or design
(including an improvement) shall be deemed “related to the business of the
Company” if (a) it was made with equipment, supplies, facilities, or
confidential information of the Company, (b) results from work performed by
Employee for the Company, or (c) pertains to the current business or
demonstrably anticipated research or development work of the Company. Employee
shall cooperate with the Company and its 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 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 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 Company
and that therefore are excluded from the scope of this Agreement.
13. Company’s
Promise to Give Employee Trade Secrets and Training. In return for Employee’s
agreement not to use or disclose the Company’s trade secrets, training, systems
and confidential proprietary business methods, the Company unconditionally
promises to give Employee within ninety (90) days of the signing of this
contract trade secrets, specialized training and other confidential proprietary
business methods.
Specifically,
the Company unconditionally promises to give Employee one-on-one training from
executives, trainers and senior employees of the Company or its affiliates.
Further, the training will include training and information concerning
procedures and confidential proprietary methods the Company uses to obtain and
retain business from their customer base, operations in the Company’s home
office, marketing and sales techniques, and information regarding the
confidential information listed in Section 12(b) of this
Agreement. Further, after the ninety (90) days, as the Company develops (during
Employee’s employment with the Company) additional trade secrets, employee
surveys and analyses, financial data and other confidential proprietary business
methods and overall marketing plans and strategies, the Company promises to
continue to provide, on a periodic basis, said confidential information and
additional training and analysis from its executives, trainers and/or senior
employees to Employee for so long as Employee is employed by Company as Chief
Brand Officer.
14. Employee’s
Promise Not to Disclose Trade Secrets and Confidential Information.
Employee understands and agrees that the Company will provide unique and
specialized training and confidential information concerning 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 the Company, for the Company’s sole and exclusive use, and which if used by
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 9, Section 10,
Section 12 and Section 14 of this
Agreement.
15. Restrictive
Covenants: Consideration; Non-Estoppel; Independent Agreements; and
Non-Executory Agreements. The restrictive covenants
of Section 9, Section 10,
Section 12 and Section
14 of this Agreement are given and made by Employee to induce the Company
to employ the Employee and to enter into this Agreement with the Employee, and
Employee hereby acknowledges that employment with the Company is sufficient
consideration for these restrictive covenants.
The restrictive covenants of Section 9, Section 10, Section 12
and Section 14 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 Company, whether predicated upon this Agreement or
otherwise, shall not constitute a defense to the enforcement of any restrictive
covenant. The Company has fully performed all obligations entitling them to the
restrictive covenants of Section 9, Section 10, Section 12
and Section 14 of
this Agreement, and those restrictive covenants therefore are not executory or
otherwise subject to rejection under the Bankruptcy Code.
The refusal or failure of the Company
to enforce any restrictive covenant of Section 9, Section 10, Section 12
or Section 14 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 Company of any such restrictive covenant, nor shall it give
rise to any claim or cause of action by Employee against the
Company.
16. Reasonableness
of Restrictions; Reformation; Enforcement. The parties hereto recognize
and acknowledge that the geographical and time limitations contained in Section 9, Section 10, Section 12,
and Section 14
hereof are reasonable and properly required for the adequate protection of the
Company’s interests. Employee acknowledges that the Company or its affiliate is
the owner or the licensee of the Trademarks, and the owner or the licensee of
the related restaurant operating systems and will provide to Employee training
in and confidential information concerning the restaurant operating systems in
reliance on the covenants contained in Section 9, Section 10, Section 12
and Section 14
hereof. It is agreed by the parties hereto that if any portion of the
restrictions contained in Section 9, Section 10, Section 12
or Section 14 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 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
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 to initiate legal proceedings to enforce,
interpret or construe any of the covenants contained in Section 9, Section 10, Section 12
or Section 14
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.
17. Specific
Performance.
Employee agrees that a breach of any of the covenants contained in Section 9, Section 10, Section 12
or Section 14
hereof will cause irreparable injury to the Company 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 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 Company does apply for such an injunction,
Employee shall not raise as a defense thereto that the Company has an adequate
remedy at law.
18. Assignability. This Agreement and the
rights and duties created hereunder, shall not be assignable or delegable by
Employee. The Company shall have the right, without Employee’s knowledge or
consent, to assign this Agreement, in whole or in part and any or all of the
rights and duties hereunder, including but not limited to the restrictive
covenants of Section 9, Section
10, Section 11, Section 12 and Section 14 hereof to any
person, including but not limited to any affiliate of the Company, any affiliate
of the Company, or any successor to the Company’s interest, and Employee shall
be bound by such assignment. Any assignee or successor may enforce any
restrictive covenant of this Agreement.
19. 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 9, Section 10, Section 11, Section 12 and
Section 14 hereof. The
restrictive covenants of Section 9, Section 10, Section 11,
Section 12 and Section
14 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. Consent
to Personal Jurisdiction and Venue. Employee hereby consents to
personal jurisdiction and venue, for any action brought by 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 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.
28. 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.
29. Cooperation.
Employee shall cooperate fully with all reasonable requests for information and
participation by the Company, its agents, or its 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.
30. 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.
31. 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.
32. Code
Section 409A. The Company makes no representation as to
whether any payment made pursuant to this Agreement, or any part thereof
constitutes or may constitute non-qualified deferred compensation. Neither the
Company nor any of its managers, officers, employees, agents or professional
advisors shall have any
OSI Restaurant Partners,
LLC
9
▇▇▇▇
▇▇▇▇▇▇
liability
to the Employee or any other person or any amounts incurred by Employee or any
other such person by reason of the determination made by the Board of Managers
of the Company pursuant to this paragraph or any action taken or omitted by the
Board, the Company, or any of the Company’s managers, officers, employees,
agents or professional advisors in the course of, or as a result of, making such
determination. For purposes of this Agreement, all rights to payments and
benefits hereunder shall be treated as rights to receive a series of separate
payments and benefits to the fullest extent allowed by Code Section
409A.
33. Entire
Agreement; Counterparts.
This Agreement supersedes the Original Agreement in its entirety. This
Agreement constitutes the entire agreement between the parties hereto concerning
the subject matter hereof, and supersedes 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”
/s/ ▇▇▇▇▇▇ Allie______________________ /s/ ▇▇▇▇ Bilney___________________________
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Witness
/s/ Tanita
Brooks______________________
▇▇▇▇▇▇
▇▇▇▇▇▇
Witness
“COMPANY”
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Attest:
|
OSI
RESTAURANT PARTNERS, LLC, a Delaware limited liability
company
|
By: /s/ ▇▇▇▇▇▇ ▇.
Kadow__________ By:
/s/ ▇▇▇▇▇▇▇
Halme____________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Secretary ▇▇▇▇▇▇▇
▇▇▇▇▇, Vice President
“FORMER
EMPLOYER”
|
|
By:
|
OSI
RESTAURANT PARTNERS, LLC, a Delaware limited liability
company
|
By: /s/ ▇▇▇▇▇▇ ▇.
Kadow__________ By: /s/ ▇▇▇▇▇▇▇
Halme____________________
▇▇▇▇▇▇
▇. ▇▇▇▇▇,
Secretary ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice
President
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|
OSI Restaurant Partners,
LLC
10