EXHIBIT 10.62
EMPLOYMENT AGREEMENT
dated as of December 8, 2000 between
AFC Enterprises, Inc. (the "Company") and
Xxxx X. Xxxxxxxxx ("Employee")
WHEREAS, the Company desires to continue the employment of Employee and to
enter into an agreement embodying the terms of such employment; and
WHEREAS, Employee desires to accept such employment and to enter into such
agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Agreement
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This Agreement shall be effective as of the date hereof and, unless
earlier terminated pursuant to Section 8 hereof, shall be for an initial term of
two (2) years (the "Term"). The Term of this Agreement and Employee's
employment hereunder will automatically be extended for an additional one-year
period following the expiration of each year of employment hereunder (the
"Renewal Date"), without further action by Employee or the Company. Such
automatic one-year renewal shall continue from year to year unless and until
either the Company or Employee gives to the other written notice not less than
thirty (30) days prior to the applicable Renewal Date of its decision not to
renew for an additional one year.
2. Employment
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2.01 Position. Employee shall serve as President of Church's Chicken,
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a division of the Company, and shall perform such duties consistent with her
position as may be assigned to her from time to time by the Chief Executive
Officer or the Board of Directors of the Company.
2.02 Time and Efforts. Employee, so long as she is employed
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hereunder, shall devote her full business time and attention to the services
required of her hereunder, except as otherwise agreed and for vacation time and
reasonable periods of absence due to sickness or personal injury, and shall use
her best efforts, judgment and energy to perform, improve and advance the
business and interests of the Company in a manner consistent with the duties of
her position.
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3. Base Salary.
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Beginning on the date hereof and continuing during the term hereof,
the Company shall pay Employee, in equal installments no less frequently than
monthly, a base salary at the rate of no less than Three Hundred Twenty-four
Thousand Dollars ($324,000.00 U.S.) per annum (the "Base Salary"). The
Employee's Base Salary shall be reviewed by the Chief Executive Officer or the
Board of Directors of the Company on an annual basis.
4. Incentive Pay.
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4.01 Annual Plan. The Board of Directors of the Company, acting in
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its sole discretion, shall annually, at or prior to the beginning of each fiscal
year of the Company, approve an annual incentive plan (the "Annual Incentive
Plan") for the senior officers of the Company, including Employee, which Plan
shall contain such terms and provisions as the Board of Directors shall
determine. Any amounts payable to Employee pursuant to the Annual Incentive
Plan is hereinafter referred to as "Incentive Pay".
4.02 Target Incentive Pay. The target Incentive Pay ("Target Incentive
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Pay") for Employee for the fiscal year of the Company ending in 2000 shall be as
follows: $200,000.00
provided, however, that the Target Incentive Pay with respect to any fiscal year
is subject to, and may be modified by, the Annual Incentive Plan approved by the
Board of Directors pursuant to Section 4.01 above and this Section 4.02 shall be
read accordingly. After 2000, the Target Incentive Pay for Employee will be set
by the Chief Executive Officer or the Board of Directors of the Company for each
fiscal year and will be included in the Annual Incentive Plan for such year.
4.03 Payment of Incentive Pay. If Employee is entitled to payment of
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any Incentive Pay for any fiscal year, an accounting will be furnished and
payment will be made to Employee as set forth in the Annual Incentive Plan, but
in no event later than 105 days following the end of each fiscal year.
4.04 Termination of Employment. If Employee's employment hereunder
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shall terminate other than pursuant to Sections 8.03 or 8.04, the Employee
shall receive, at the time contemplated by the Annual Incentive Plan, such
Incentive Pay, if any, to which she would have been entitled under the terms of
the Annual Incentive Plan had Employee remained in the employ of the Company for
the entire fiscal year in which such termination occurs. If Employee's
employment hereunder shall terminate pursuant to (a) Section 8.03, the
provisions of Section 8.03 shall determine the amount of Incentive Pay payable
to Employee; or (b) Section 8.04, no Incentive Pay shall be payable to Employee
after such termination.
Employee's Initials:
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5. Stock Options.
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5.01 Stock Options. The Company has heretofore granted to Employee
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certain nonqualified stock options to purchase shares of the Company's common
stock. As part of the Company's compensation strategy, the Company intends to
grant additional stock options in the future based upon Employee's performance
as determined in the sole discretion of the Board of Directors of the Company.
5.02 Shareholders' Agreement. The Employee has agreed to be bound by
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the terms of the shareholders' agreements (the "Shareholders' Agreements")
heretofore executed by Employee or identified in the stock option agreements
heretofore granted to Employee, copies of which are on file in the records of
the Company, which Shareholders' Agreements shall be applicable to all shares of
common stock issued to Employee upon the exercise of any stock options granted
to Employee before or after the date hereof.
6. Employee Benefits.
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6.01 Executive Flex Perk. Employee shall be entitled to participate in
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the Company's Executive Flex Perk Plan subject to the terms, conditions and
limitations thereof. Subject to Section 6.07 below and the terms of the Plan,
the Company will pay to, or for the benefit of Employee, an amount equal to
$15,000 per year payable in the same manner as Employee's Base Salary is paid.
6.02 Life Insurance. Subject to Section 6.07 below, in the event of
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the death of Employee during the term of her employment with the Company and
after the Company first obtains the Life Insurance Policy described herein, the
Employee's named beneficiary shall be entitled to receive an amount equal to
three (3) times Employee's Base Salary as of the date hereof (the "Death
Benefit") payable solely from, and to the extent of, the death benefit proceeds
payable under such Life Insurance Policy.
(a) As soon as practicable after the execution of this
Agreement, the Company will procure and maintain on the life of Employee life
insurance protection in an amount not less than the Death Benefit determined
based upon the Base Salary in effect as of the date hereof (any and all such
policies are referred to herein, collectively, as the "Life Insurance Policy").
The Company may, at its option, purchase term or permanent life insurance
protection on Employee. Notwithstanding the foregoing, if the premiums for the
Life Insurance Policy on Employee shall exceed regular, non-rated premiums, the
Company may, but shall have no obligation to, fund such excess premium payments.
In the event the Company determines not to fund such excess it shall promptly
notify Employee and Employee may, at her option, elect to pay the excess. If
Employee fails to pay such excess or if for any other reason the Company, after
reasonable efforts, is not able to obtain the Life Insurance Policy required
herein for Employee, then Employee shall not be entitled to any benefits
whatsoever under this Section 6.02 except as may
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otherwise be determined in the discretion of the Company and set forth in
writing. The Company shall have and may exercise all ownership rights in such
Life Insurance Policy, except as provided in this Section 6.02.
(b) Upon issuance of the Life Insurance Policy, the Company and
Employee shall enter into an insurance agreement (the "Insurance Agreement")
which shall specify in detail the relative rights and obligations of the Company
and Employee with respect to the Life Insurance Policy including, but not
limited to, (i) obligations of the Company and the Employee with respect to the
payment of premiums, (ii) designation of beneficiaries, (iii) policy ownership
and the exercise of rights incident thereto and (iv) the relative rights of
Employee and the Company upon Employee's termination of employment.
(c) Except as otherwise provided in this Agreement or the
Insurance Agreement, the obligations of the Company and Employee under this
Section 6.02 and the Insurance Agreement shall automatically terminate upon
Employee's termination of employment for any reason prior to her death.
6.03 Disability Insurance.
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(a) The Company shall procure for Employee as soon as practical
after the date hereof and shall maintain in full force and effect during the
Term a Supplemental Disability Policy which will supplement the benefits payable
under any disability benefit provided to Employee by the Company under its basic
employee health care benefit program, so that, subject to Section 6.07 below,
with respect to a disability as defined in the Supplemental Disability Policy
occurring after the Company has obtained the Supplemental Disability Policy, the
total monthly disability benefit (the "Disability Benefit") payable to Employee
under all disability policies maintained by the Company, after a maximum
elimination period of ninety (90) days, shall equal 70% of the sum of Employee's
Base Compensation and Incentive Pay for the year immediately preceding the year
in which the termination for Disability occurs.
(b) Notwithstanding anything herein to the contrary, if the
premiums for the Supplemental Disability Income Policy for Employee shall exceed
regular, non-rated premiums, the Company may, but shall have no obligation to,
fund such excess. In the event the Company determines not to fund such excess it
shall promptly notify Employee and Employee may, at her option, elect to pay the
excess. If Employee fails to pay such excess or if for any other reason the
Company, after reasonable efforts, is not able to obtain the Supplemental
Disability Income Policy required herein, then Employee shall not be entitled to
any Disability Benefit hereunder except as may otherwise be determined in the
discretion of the Company and set forth in writing.
6.04 Executive Medical Benefit. Subject to Section 6.07, the
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Company, at
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its expense, shall provide Employee with an annual physical examination to be
conducted by a physician or physicians as determined by the Company, or by
Employee with the approval of the Company.
6.05 Other Benefits. Employee shall be provided additional employee
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benefits, including health, accident and disability insurance under the
Company's regular and ongoing plans, policies and programs available, from time
to time, to senior officers of the Company, in accordance with the provisions of
such plans, policies and programs governing eligibility and participation;
provided, however, that such benefits may be modified, amended or rescinded by
the Board of Directors of the Company in its sole discretion.
6.06 Vacation. Employee shall be entitled to four (4) weeks paid
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vacation each year during the term hereof. Any vacation not used in any year
shall not accrue for use in subsequent years and shall be forfeited as of the
end of such year.
6.07 Paramount Provisions.
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(a) Notwithstanding anything in Sections 6.02 and 6.03 above or any
other provision of this Agreement to the contrary, if the Company has met all of
its obligations under this Agreement (and the Insurance Agreement, if
applicable) with respect to obtaining and maintaining in force (i) the Life
Insurance Policy described in Section 6.02 hereof on the life of Employee to
fund the Death Benefit or (ii) the Supplemental Disability Policy maintained for
Employee pursuant to Section 6.03 hereof to fund such Employee's Disability
Benefit, but all or any portion of the proceeds under any such policy are not
actually received by the Company for any reason whatsoever, including without
limitation the insolvency of the insurer or any misrepresentation made by
Employee in the application for such insurance, then the right of Employee or
her designated beneficiary to receive a Disability Benefit or a Death Benefit,
as the case may be, shall be reduced (but not below zero) by the amount by which
the Disability Benefit or Death Benefit otherwise payable exceeds the insurance
proceeds actually received.
(b) Anything in Sections 6.01, 6.02, 6.03, and 6.04 to the contrary
notwithstanding, the amount of the benefits provided for herein are subject to
reduction or other adjustment as shall be provided for in the plan or insurance
contract, as the case may be, pursuant to which such benefit is being paid or as
may be determined by the Chief Executive Officer or the Board of Directors of
the Company, provided that in no event shall any such adjustment exceed the
maximum benefit provided for herein. The initial amount of each such benefit is
set forth on Exhibit A, attached hereto, and such amounts may be increased or
decreased pursuant to the plan or insurance contract pursuant to which such
benefit is being paid or by the Chief Executive Officer or the Board of
Directors at any time or from time to time hereafter and the Employee will be
given written notice of any such change. Anything in this Agreement to the
contrary notwithstanding, the Chief
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Executive Officer or the Board of Directors shall have full authority to make
all determinations deemed necessary or advisable for the administration of the
benefits described in this Section 6. Subject to Section 12.04, the good faith
interpretation and construction by the Chief Executive Officer or the Board of
Directors of the terms of this Section 6 or the benefit programs described
herein shall be final, conclusive and binding on Employee.
7. Business Expenses.
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All reasonable and customary business expenses incurred by Employee in the
performance of her duties hereunder shall be paid or reimbursed by the Company
in accordance with the Company's policies in effect, from time to time.
8. Termination of Employment.
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8.01 Definitions. For purposes of this Section 8, the following terms
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shall have the following meanings:
(a) Cause. The term "Cause" shall mean (i) Employee commits fraud or
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is convicted of a crime involving moral turpitude, (ii) Employee, in carrying
out her duties hereunder, has been guilty of gross neglect or gross misconduct
resulting in harm to the Company or any of its subsidiaries or affiliates, (iii)
Employee shall have failed to materially comply with the policies of the Company
or shall have refused to follow or comply with the duly promulgated directives
of the Chief Executive Officer or the Board of Directors of the Company, (iv)
Employee has breached any of the provisions of Section 10.02 through and
including 10.04 or (v) Employee otherwise materially breaches this Agreement.
(b) Disability. The term "Disability" shall mean the good faith
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determination by the Chief Executive Officer or of the Board of Directors of the
Company that Employee has failed to or has been unable to perform her duties as
the result of any physical or mental disability for an aggregate of ninety (90)
calendar days.
8.02 Termination upon Death or Disability. If Employee's employment is
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terminated due to her death or Disability, the Company shall pay to the estate
of the Employee or to the Employee, as the case may be, within fifteen (15) days
following Employee's death or upon her termination in the event of Disability,
all amounts then payable to Employee pro rated through the date of termination
pursuant to Sections 3, 6.01, and 7, and the amount of any accrued but unused
vacation under Section 6.06 for the year in which such termination occurs. In
addition, the Company shall pay to Employee any Incentive Pay payable pursuant
to Section 4.04 hereof in accordance with the terms thereof.
8.03 Termination for other than Death or Disability or for Cause. If
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Employee's employment is terminated by the Company other than (i) by reason of
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Employee's death or Disability or (ii) for Cause, the Company shall pay or
provide to Employee, in lieu of all other amounts payable hereunder or benefits
to be provided hereunder the following: (a) a payment equal to the sum of one
(1) times Employee's Base Salary at the time of termination; (b) a payment equal
to one (1) times Employee's Target Incentive Pay for the year in which such
termination occurs (or, if no Target Incentive Pay has been designated for such
year, then the Target Incentive Pay for the last year in which it was designated
prior to such termination); and (c) the acceleration of any unvested rights of
Employee under any stock options or other equity incentive programs such that
they shall immediately vest under the terms of such plans. As a condition
precedent to the requirement of Company to make such payments or grant such
accelerated vesting, Employee shall not be in breach of her obligations under
Section 10 hereof and Employee shall execute and deliver to Company a general
release in favor of the Company in substantially the same form as the general
release then contained in the latest Severance Agreement being used by the
Company.
Any payments required to be made under this Section 8.03 shall be made to
Employee, at the election of the Company, either within thirty (30) days after
the date of Employee's termination of employment or, at the Company's election,
in fifty-two (52) equal installments, payable at the same time and on the same
basis as was the payment of Employee's Base Salary prior to such termination.
8.04 Voluntary Termination by Employee or Termination for Cause.
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Employee may terminate her employment hereunder at any time whatsoever, with or
without cause, upon thirty (30) days prior written notice to the Company. The
Company may terminate Employee's employment hereunder at any time without notice
for Cause. In the event Employee's employment is terminated voluntarily by
Employee or by the Company for Cause:
(a) The Company shall pay to Employee upon such termination all
amounts then due under sections 3, 4 (but only to the extent of earned but
unpaid Incentive Pay), 6, and 7, prorated, through the date of termination for
the year in which she is terminated; and
(b) The Company shall be under no obligation to make severance
payments to Employee or continue any benefits being provided to Employee beyond
the date of such termination.
9. Change of Control, Change in Responsibilities.
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Upon the occurrence of both of the following events:
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(a) The dissolution or liquidation of the Company, or a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the owners or all of the outstanding shares of
Common Stock immediately prior to such reorganization, merger or consolidation
own in the aggregate, directly
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and indirectly, less than 50% of the outstanding shares of Common Stock of the
Company or any other entity into which the Company shall be merged or
consolidated immediately following the consummation thereof, or the sale,
transfer or other disposition of all or substantially all of the assets or more
than 50% of the then outstanding shares of Common Stock of the Company in a
single transaction or series of related transactions (a "Change in Control");
and
(b) Within one (1) year of such Change in Control there is a
termination of employment without cause or a material diminution of or change in
Employee's responsibilities or duties,
Employee may elect, in writing, within ninety (90) days following the occurrence
of such events, to terminate this Agreement and her employment with the Company
will terminate, effective thirty (30) days after the Company's receipt of such
notice. In such event Employee shall be deemed to have been terminated by the
Company other than for Cause and all amounts payable to Employee pursuant to
Section 8.03 shall become immediately due and payable.
A Change in Control of the Company shall not be deemed to occur by
reason of any public offering of the Common Stock of the Company.
Notwithstanding any other provision contained in this Agreement, if the
aggregate of the payments provided for in this Agreement which result from
Employee's election to terminate her employment under this Section 9 and the
other payments and benefits which the Employee has the right to receive from the
Company as a result thereof (the "Total Payments") would constitute a "parachute
payment," as defined in Section 280G(b)(2) of the Internal Revenue Code of 1986,
as amended (the "Code"), the Employee shall receive, instead of the Total
Payments, an increased amount (the "Gross Up Total") equal to the product of
(x) the Total Payments and (y) a fraction, the numerator of which is 1 and the
denominator of which is 1 minus the maximum effective combined tax rate with
respect to all federal, state, and local income taxes payable by the Employee
under Code Section 4999 (the "Excise Taxes"). It is the intention of this
provision that the Gross Up Total minus the Excise Taxes shall equal the Total
Payments and this provision shall be read and interpreted accordingly.
Except as expressly contemplated by this Agreement, or in any other
agreement referred to in Section 5 hereof, no merger, reorganization,
recapitalization, sale of stock, sale of assets or other change in the capital
structure of the Company or in the identity of the legal or beneficial owners of
the Company shall affect the rights or obligations of the Company or Employee
hereunder.
10. Confidentiality and Non-Competition.
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10.01 Definitions. For purposes of this Section 10, the following
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terms shall have the following meanings:
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"Affiliate" means any corporation, limited liability company,
partnership or other entity of which the Company owns at least fifty percent
(50%) of the outstanding equity and voting rights, directly or indirectly,
through any other corporation, limited liability company, partnership or other
entity.
"Businesses" means the businesses engaged in by the Company
directly or through its Affiliates immediately prior to termination of
employment.
"Confidential Information" means information which does not rise
to the level of a Trade Secret, but is valuable to the Company or any Affiliate
and provided in confidence to Employee.
"Proprietary Information" means, collectively, Trade Secrets and
Confidential Information.
"Restricted Period" means the period commencing as of the date
hereof and ending on that date two years (2) year after the termination of
Employee's employment with the Company for any reason, whether voluntary or
involuntary.
"Trade Secrets" means information which derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.
10.02 Covenant Not-To-Disclose. The Company and Employee recognize
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that, during the course of Employee's employment with the Company, the Company
has disclosed and will continue to disclose to Employee Proprietary Information
concerning the Company and the Affiliates, their products, their franchisees,
their services and other matters concerning their Businesses, all of which
constitute valuable assets of the Company and the Affiliates. The Company and
Employee further acknowledge that the Company has, and will, invest considerable
amounts of time, effort and corporate resources in developing such valuable
assets and that disclosure by Employee of such assets to the public shall cause
irreparable harm, damage and loss to the Company and the Affiliates.
Accordingly, Employee acknowledges and agrees:
(a) that the Proprietary Information is and shall remain the
exclusive property of the Company (or the applicable Affiliate);
(b) to use the Proprietary Information exclusively for the
purpose of fulfilling the obligations under this Agreement;
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(c) to return the Proprietary Information, and any copies thereof, in
her possession or under her control, to the Company (or the applicable
Affiliate) upon request of the Company (or the Affiliate), or expiration or
termination of Employee's employment hereunder for any reason; and
(d) to hold the Proprietary Information in confidence and not copy,
publish or disclose to others or allow any other party to copy, publish or
disclose to others in any form, any Proprietary Information without the prior
written approval of an authorized representative of the Company.
The obligations and restrictions set forth in this Section 10.02 shall survive
the expiration or termination of this Agreement, for any reason, and shall
remain in full force and effect as follows:
(x) as to Trade Secrets, indefinitely, and
(y) as to Confidential Information, for a period of two (2) years
after the expiration or termination of this Agreement for any reason.
The confidentiality, property, and proprietary rights protections
available in this Agreement are in addition to, and not exclusive of, any and
all other corporate rights, including those provided under copyright, corporate
officer or director fiduciary duties, and trade secret and confidential
information laws. The obligations set forth in this Section 10.02 shall not
apply or shall terminate with respect to any particular portion of the
Proprietary Information which (i) was in Employee's possession, free of any
obligation of confidence, prior to her receipt from the Company or its
Affiliate, (ii) Employee establishes the Proprietary Information is already in
the public domain at the time the Company or the Affiliate communicates it to
Employee, or becomes available to the public through no breach of this Agreement
by Employee, or (iii) Employee establishes that she received the Proprietary
Information independently and in good faith from a third party lawfully in
possession thereof and having no obligation to keep such information
confidential.
10.03 Covenant of Non-Disparagement and Cooperation. Employee agrees
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that she shall not at any time during or following the term of this Agreement
make any remarks disparaging the conduct or character of the Company or the
Affiliates or any of the Company's or the Affiliates' current or former agents,
employees, officers, directors, successors or assigns (collectively the "Related
Parties"). In addition, Employee agrees to cooperate with the Related Parties,
at no extra cost, in any litigation or administrative proceedings (e.g., EEOC
charges) involving any matters with which Employee was involved during
Employee's employment with the Company. The Company shall reimburse Employee for
travel expenses approved by the Company or the Affiliates incurred in providing
such assistance.
Employee's Initials:
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10.04 Covenant Not-To-Induce. Employee covenants and agrees that during
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the Restricted Period, she will not, directly or indirectly, on her own behalf
or in the service or on behalf of others, hire, solicit, take away or attempt to
hire, solicit or take away any person who is or was an employee of the Company
or any Affiliate during the one (1) year period preceding the termination of
Employee's employment.
10.05 Remedies. The Company and Employee expressly agree that a
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violation of any of the covenants contained in subsections 10.02 through and
including 10.04 of this Section 10, or any provision thereof, shall cause
irreparable injury to the Company and that, accordingly, the Company shall be
entitled, in addition to any other rights and remedies it may have at law or in
equity, to an injunction enjoining and restraining Employee from doing or
continuing to do any such act and any other violation or threatened violation of
said Sections 10.02 through and including 10.04 hereof.
10.06 Severability. In the event any provision of this Agreement shall
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be found to be void, the remaining provisions of this Agreement shall
nevertheless be binding with the same effect as though the void part were
deleted; provided, however, if subsections 10.02 through and including 10.04 of
this Section 10 shall be declared invalid, in whole or in part, Employee shall
execute, as soon as possible, a supplemental agreement with the Company,
granting the Company, to the extent legally possible, the protection afforded by
said subsections. It is expressly understood and agreed by the parties hereto
that the Company shall not be barred from enforcing the restrictive covenants
contained in each of subsections 10.02 through and including 10.04, as each are
separate and distinct, so that the invalidity of any one or more of said
covenants shall not affect the enforceability and validity of the other
covenants.
10.07 Ownership of Property. Employee agrees and acknowledges that all
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works of authorship and inventions, including but not limited to products,
goods, know-how, Trade Secrets and Confidential Information, and any revisions
thereof, in any form and in whatever stage of creation or development, arising
out of or resulting from, or in connection with, the services provided by
Employee to the Company or any Affiliate under this Agreement are works made for
hire and shall be the sole and exclusive property of the Company or such
Affiliate. Employee agrees to execute such documents as the Company may
reasonably request for the purpose of effectuating the rights of the Company or
the Affiliate in any such property.
10.08 No Defense. The existence of any claim, demand, action or cause
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of action of the Employee against the Company shall not constitute a defense to
the enforcement by the Company of any of the covenants or agreements herein.
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11. Indemnification.
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11.01 Company Obligations. The Company hereby indemnifies and
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agrees to hold harmless Employee, to the extent allowed by applicable law,
against all liabilities, obligations, claims, demands, actions, causes of
action, lawsuits, judgments, expenses and costs, including but not limited to
the reasonable costs of investigation and attorney's fees, incurred by the
Employee as a result of any threat, demand, claim action or lawsuits, made,
instituted or initiated against the Employee, which arises out of, results from
or relates to this Agreement or any action taken by Employee in the course of
performance of Employee's duties hereunder, except for Employee's own gross
negligence or willful misconduct.
11.02 Notice and Defense of Claim. If any claim suit or other
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legal proceeding shall be commenced, or any claim or demand be asserted against
the Employee and Employee desires indemnification pursuant to this paragraph,
the Company shall be notified to such effect with reasonable promptness and
shall have the right to assume at its full cost and expense the entire control
of any legal proceeding, subject to the right of the Employee to participate at
her full cost and expense and with counsel of her choice in the defense,
compromise or settlement thereof. The Employee shall cooperate fully in all
respects with the Company in any such defense, compromise or settlement,
including, without limitation, making available to the Company all pertinent
information under the control of the Employee. The Company may compromise or
settle any such action, suit, proceeding, claim or demand without Employee's
approval so long as the Company obtains for Employee's benefit a release of
liability with respect to such claim from the claimant and the Company assumes
and agrees to pay any amounts due with respect to such settlement. In no event
shall the Company be liable for any settlement entered into by the Employee
without the Company's prior written consent.
11.03 Survival. The provisions of this paragraph 12 shall survive
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the termination of this Agreement for a period of four (4) years, unless
Employee is terminated for Cause, in which event the provisions of this Section
11 shall not survive termination of this Agreement.
12. Dispute Resolution
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12.01 Agreement to Arbitrate. In consideration for her continued
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employment with the Company, and other consideration, the sufficiency of which
is hereby acknowledged, but subject to Section 6.07(b) above, Employee
acknowledges and agrees that any controversy or claim arising out of or relating
to Employees employment, termination of employment, or this Agreement including,
but not limited to, controversies and claims that are protected or covered by
any federal, state, or local statute, regulation or common law, shall be settled
by arbitration pursuant to the Federal Arbitration Act. This includes, but is
not limited to, violations or alleged violations of any federal or state statute
or common law
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(including, but not limited to, the laws of the United States or of any state,
or the Constitution of the United States or of any state), or of any other law,
statute, ordinance, including but not limited to, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act, the Equal Pay Act, the Employee Retirement
Income Security Act, the Rehabilitation Act of 1973, and any other statute or
common law. This provision shall not, however, preclude the Company from seeking
equitable relief as provided in Section 10.06 of this Agreement.
12.02 Procedure. The arbitration shall be conducted in accordance with
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the Employment Arbitration Rules of the American Arbitration Association: a
single arbitrator who is experienced in employment law shall be selected under
those Rules, and the arbitration shall be initiated in Atlanta, Georgia, unless
the parties agree in writing to a different location or the Arbitrator directs
the arbitration to be held at a different location. Except for filing fees, all
costs of the arbitrator shall be allocated by the arbitrator. The award rendered
by the arbitrator shall be final and binding on the parties hereto and judgment
thereon may be entered in any court having jurisdiction thereof. In addition to
that provided for in the Employment Arbitration Rules, the arbitrator has sole
discretion to permit discovery consistent with the Federal Rules of Civil
Procedure and the judicial interpretation of those rules upon request by any
party; provided, however, it is the intent of the parties that the arbitrator
limit the time and scope of any such discovery to the greatest extent
practicable and provide a decision as rapidly as possible given the
circumstances of the claims to be determined. The arbitrator also shall have the
power and authority to grant injunctive relief for any violation of Sections
10.02 through and including 10.04 and the arbitrator's order granting such
relief may be entered in any court of competent jurisdiction. The agreement to
arbitrate any claim arising out of the employment relationship or termination of
employment shall not apply to those claims which cannot be made subject to this
provision by statute, regulation or common law. These include, but are not
limited to, any claims relating to work related injuries and claims for
unemployment benefits under applicable state laws.
12.03 Rights of Parties. Nothing in this clause shall be construed to
-----------------
prevent the Company from asking a court of competent jurisdiction to enter
appropriate equitable relief to enjoin any violation of this Agreement by
Employee. The Company shall have the right to seek such relief in connection
with or apart from the parties' rights under this clause to arbitrate all
disputes. With respect to disputes arising under this Agreement that are
submitted to a court rather than an arbitrator, including actions to compel
arbitration or for equitable relief in aid of arbitration, the parties agree
that venue and jurisdiction are proper in any state or federal court lying
within Atlanta, Georgia and specifically consent to the jurisdiction and venue
of such court for the purpose of any proceedings contemplated by this paragraph.
By entering into this Agreement the parties have waived any right which may
exist for a trial by jury and have expressly agreed to
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resolve any disputes covered by this Agreement through the arbitration process
described herein.
12.04 Employee Benefit Plan Issues. With respect to any benefits
----------------------------
provided to Employee hereunder which may be subject to the provisions of the
Employee Retirement Income Security Act of 1974, as amended (the "Covered
Plans"), and notwithstanding Section 6.07(b) above, the adjudication of any
claims under the Covered Plans shall be administered in accordance with the
terms and conditions of such Covered Plan. If the Covered Plan does not contain
a claims adjudication provision then, if for any reason, a claim for benefits
under a Covered Plan is denied by the Company, the Company shall deliver to the
Employee or her representative (the "claimant") a written explanation setting
forth the specific reasons for the denial, pertinent references to the Agreement
section or section of the Covered Plan on which the denial is based, such other
data as may be pertinent and information on the procedures to be followed by the
claimant in obtaining a review of her claim, all written in a manner calculated
to be understood by the claimant. For this purpose: (A)The claimant's claim
shall be deemed filed when presented orally or in writing to the individual at
the Company then performing the duties currently being performed by the
individual in charge of the People Services and Development Department (the
"Claims Manager"). (B) The Claims Manager's explanation shall be in writing
delivered to the claimant within 90 days of the date the claim is filed. The
claimant shall have 60 days following her receipt of the denial of the claim to
file with the Claim's Manager a written request for review of the denial. The
claimant or her representative may review pertinent documents related to this
Agreement and in the Claim's Manager's possession in order to prepare the
request for review. The Claims Manager shall decide the issue on review and
furnish the claimant with a copy of its decision within 60 days of receipt of
the claimant's request for review of her claim. The decision on review shall be
in writing and, if denied, shall include specific reasons for the decision,
written in a manner calculated to be understood by the claimant, as well as
specific references to the pertinent provisions on which the decision is based.
If a copy of the decision is not so furnished to the claimant within such 60
days, the claim shall be deemed denied on review. Any payment to a claimant
shall to the extent thereof be in full satisfaction of all claims hereunder
against the Company and the Claims Manager, either of whom may require such
claimant, as a condition to such payment, to execute a receipt and release
therefor in such form as shall be determined by the Company and the Claims
Manager. If a receipt and release is required by the claimant and the claimant
does not provide such receipt and release in a timely enough manner to permit a
timely distribution in accordance with the general timing of distribution
provisions in this Agreement, the payment of any affected distribution may be
delayed until the Company and the Claims Manager receive a proper receipt and
release.
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13. Employee Acknowledgment.
-----------------------
By signing this Agreement, Employee acknowledges that the Company has
advised Employee of her right to consult with an attorney prior to executing
this Agreement; that she has the right to retain counsel of her own choosing
concerning the agreement to arbitrate or any waiver of rights or claims; that
she has read and fully understands the terms of this Agreement and/or has had
the right to have it reviewed and approved by counsel of choice, with adequate
opportunity and time for such review; and that she is fully aware of its
contents and of its legal effect. Accordingly, this Agreement shall not be
construed against any party on the grounds that the party drafted this
Agreement. Instead, this Agreement shall be interpreted as though drafted
equally by all parties.
14. Amendments.
-----------
This Agreement may not be altered, modified or amended except by a written
instrument signed by each of the parties hereto.
15. Successors.
-----------
As used in this Agreement, the term the Company shall include any
successors to all or substantially all of the business and/or assets of the
Company which assumes and agrees to perform this Agreement.
16. Assignment.
-----------
Neither this Agreement nor any of the rights or obligations of either party
hereunder shall be assigned or delegated by any party hereto without the prior
written consent of the other party, except that the Company may without the
consent of Employee assign its rights and delegate its duties hereunder to any
successor to the business of the Company. In the event of the assignment by the
Company of its rights and the delegation of its duties to a successor to the
business of the Company and the assumption of such rights and obligations by
such successor, the Company shall, effective upon such assumption, be relieved
from any and all obligations whatsoever to Employee hereunder.
17. Waiver.
-------
Waiver by any party hereto of any breach or default by any other party of
any of the terms of this Agreement shall not operate as a waiver of any other
breach or default, whether similar to or different from the breach or default
waived.
18. Severability.
-------------
In the event that any one or more of the provisions of this Agreement shall
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and
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enforceability of the remaining provisions contained herein shall not be
affected thereby.
19. Survival.
---------
Notwithstanding anything herein to the contrary, the provisions of Sections
6.07, 7, 8.03, 9, 10, and 12 shall survive the termination of this Agreement.
20. Entire Terms.
-------------
This Agreement contains the entire understanding of the parties with
respect to the employment of Employee by the Company. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein. This Agreement supersedes all prior
agreements, arrangements and understandings between the parties, whether oral or
written, with respect to the employment of Employee.
21. Notices.
--------
Notices and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by United States registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to Employee:
Xxxx X. Xxxxxxxxx
0000 Xxxx Xxxxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
If to the Company to:
AFC Enterprises, Inc.
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Legal Department
or to such other address or such other person as Employee or the Company shall
designate in writing in accordance with this Section 21 except that notices
regarding changes in notices shall be effective only upon receipt.
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22. Headings.
---------
Headings to Sections in this Agreement are for the convenience of the
parties only and are not intended to be a part of, or to affect the meaning or
interpretation of, this Agreement.
23. Governing Laws.
---------------
The Agreement shall be governed by the laws of the State of Georgia without
reference to the principles of conflict of laws.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and Employee has hereunto set her hand as of the day and year first above
written.
COMPANY:
AFC ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
Chairman & Chief Executive Officer
EMPLOYEE:
/s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxxx
Employee's Initials:
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