RELEASE AND SETTLEMENT AGREEMENT (Older Workers Benefit Protection Act Form)
Exhibit 10
(Older Workers Benefit Protection Act Form)
THIS RELEASE AND SETTLEMENT AGREEMENT (hereinafter referred to as “Agreement”) is made
this 3rd day of October, 2005, by and between Wendy’s International, Inc. (“Wendy’s”) and Xxxxxx X.
Xxxxxxx (“Employee”). In consideration of payment to Employee by Wendy’s in the amounts stated
below, the parties agree as follows:
PAYMENTS
NOTICE PERIOD PAYMENTS
During the period of time between September 19, 2005 and December 31, 2005 (“Notice Period”),
Employee will be paid Employee’s full biweekly base salary, for a total of One Hundred Twenty Nine
Thousand Eight Hundred Eight Dollars ($129,808.00), less any and all applicable deductions and
withholdings, and Employee shall be entitled to continue in all Wendy’s benefit plans with the
exception that Employee is not eligible to participate in Wendy’s short-term and long-term
disability plans (other than the supplemental long-term disability plan, in which you may
participate until January 2, 2006), and with the further exception that Employee shall not accrue
vacation credits. Employee may have use of Employee’s Company automobile during the Notice Period.
All mileage incurred by Employee during the Notice Period must be claimed and recorded as personal
mileage, except where mileage is incurred in connection with services requested by the Chief
Executive Officer as described in the following paragraph. At the conclusion of the Notice Period
the Company will pay the lessor the cost to purchase Employee’s Company automobile. Employee will
be responsible for all income, registration and transfer taxes associated with that purchase.
During the Notice Period, Employee will have the title of Vice President and Special Advisor
to the Chief Executive Officer and shall perform such reasonable duties and responsibilities as
shall be requested from time to time by the Chief Executive Officer. Employee acknowledges that he
has been relieved of his former duties as of September 19, 2005.
Employee acknowledges that Employee’s employment with Wendy’s is terminated effective as of
January 2, 2006 (the “Termination Date”) and Employee’s benefits (e.g. health insurance) and
employment will cease at midnight on that date. Employee shall not be entitled to payment for
unused vacation.
NON-COMPETE PAYMENTS
Employee is eligible to receive the amount of One Million Six Hundred Fifty Thousand Dollars
($1,650,000.00), less any and all applicable deductions and withholdings, in accordance with the
following schedule: Eight Hundred Twenty Five Thousand Dollars ($825,000.00) on July 5, 2006, Four
Hundred Twelve Thousand Five Hundred Dollars ($412,500.00) on September 29, 2006 and Four Hundred
Twelve Thousand Five Hundred Dollars ($412,500.00) on December 29, 2006 (the “Non-Compete
Payments”). The Non-Compete Payments are contingent upon Employee’s compliance with the provisions
of the Non-Compete Addendum, attached hereto and incorporated herein. Employee’s obligations under
the Non-Compete Addendum are a material component of this Agreement and any breach of those
obligations shall entitle Wendy’s to reimbursement of the entire amount of the Non-Compete
Payments.
RELEASE OF ALL CLAIMS
By signing this Agreement, Employee, on behalf of himself, as well as any spouse, partner,
children, heirs, family members, executors, administrators, privies and/or assigns hereby forever
releases, waives, and discharges Wendy’s, its parents, subsidiaries and affiliates, assigns,
successors and franchisees, and each of its and their past, present and future officers, directors,
agents, managers, supervisors, shareholders, employees, representatives, insurers, and attorneys
(all of whom are collectively referred to as the “Released Parties”) from any and all claims,
damages, lawsuits, injuries, liabilities, and causes of action that Employee has or may have,
whether known to Employee or not, whether contingent
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or
liquidated, based on or arising from any event, fact, conduct, condition, action, or inaction occurring or
existing (in whole or in part) on or before the time Employee signs this Agreement. This release
includes but is in no way limited to claims of race discrimination, racial harassment, retaliation,
wrongful discharge, breach of implied contract, negligent or intentional infliction of emotional
distress, outrageous conduct, libel, slander, defamation, and/or any claims concerning any
emotional or physical injury.
RELEASE OF ALL EMPLOYMENT CLAIMS
Without limiting the foregoing releases, Employee, on behalf of himself, as well as any
spouse, partner, children, heirs, family members, executors, administrators, privies and/or assigns
understands and agrees that the release granted to the Released Parties by signing this Agreement
releases all of the Released Parties from any rights and claims that could have been asserted under
any city ordinance or state or federal law including, without limitation, those based on or
relating to discrimination or retaliation based on race, religion, sex, handicap, disability, equal
pay, age, national origin, creed, color, retaliation, and sexual harassment, and includes claims
under any applicable state, local or federal discrimination law, including without limitation,
Title VII of the 1964 Civil Rights Act, the Civil Rights Act of 1991, the Fair Labor Standards Act,
the Labor Management Relations Act, the Equal Pay Act, the Americans with Disabilities Act, the
Employee Retirement Income Security Act, Age Discrimination in Employment Act of 1967 as amended by
the Older Workers Benefit Protection Act, the Consolidated Omnibus Budget Reconciliation Act,
Workers’ Compensation Laws, Unemployment Compensation laws, 42 U.S.C. §§ 1981, 1983, 1985, and all
laws, statutory or common, which are meant to protect workers in their employment relationships and
under which Employee may have rights and claims, whether known to Employee or not, which may have
arisen or which may hereafter arise, directly or indirectly, out of Employee’s employment with
Wendy’s.
WAIVER OF ALL KNOWN AND UNKNOWN CLAIMS
In making this Agreement, the Employee, on behalf of himself, as well as any spouse, partner,
children, heirs, family members, executors, administrators, privies and/or assigns acknowledges
that he or she may later discover facts different from or in addition to those now known or
believed to be true at this time. The releases contained in this Agreement are made
notwithstanding the existence of any different or additional facts.
The Employee acknowledges he or she may hereafter discover claims or facts in addition to or
different from those which he or she now knows or believes to exist in connection with this
Agreement. Those facts, if known or suspected at the time of executing this Agreement, may have
materially affected this Agreement. Nevertheless, the Employee waives any rights, claims or causes
of action that might arise as a result of such different or additional claims or facts.
NO ADMISSION OF WRONGDOING BY WENDY’S OR ANY OF THE RELEASED PARTIES
Employee understands that neither this Agreement nor any action taken under it is or should be
construed as an admission by any of the Released Parties that they have violated any local, state
or federal law, statutory or common. The Released Parties specifically disclaim any liability to
or wrongful acts against Employee, or any other person and that this Agreement is executed as a
compromise to avoid the possible expense of litigation and to terminate all controversy and/or
claims by Employee.
CONFIDENTIALITY OF THIS RELEASE AND SETTLEMENT AGREEMENT
Employee agrees and acknowledges that the terms and provisions of this Agreement, including
the amount paid to Employee, shall be and have been kept in utter, absolute, and strictest
confidence, and that Employee has not released and shall never reveal that information to any
individual or entity except Employee may provide information about this Agreement as follows: (a)
as required by any governmental agency or by process of law; (b) to an attorney who is assisting
Employee in negotiating this Agreement; (c) to a professional accountant or tax consultant with
whom Employee has a confidential relationship; and (d) to immediate family members, which only
includes a spouse, parents and siblings residing with Employee; provided, in each case, the entity
or individual has been informed of this confidentiality obligation and that the entity or
individual agrees to keep such information confidential.
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NO FILING OF CLAIMS
Employee represents and agrees that Employee has not filed, and will not do so at any time
hereafter, any complaints, charges, lawsuits or other legal or administrative actions against
Wendy’s relative to Employee’s employment with Wendy’s and termination from Wendy’s; and in the
alternative, if, in fact, a claim or other legal action has been filed, Employee agrees to dismiss,
with prejudice, any and all such pending claims filed against Wendy’s. Employee, however,
maintains the right to file any action for the sole purpose of enforcing rights under this
Agreement, or other rights based solely on events arising after entering into this Agreement.
TAXATION
Employee understands and agrees that the amounts set forth herein are subject to withholdings
and FICA. Employee agrees that none of the Released Parties or their attorneys have made any other
representations or promises about the tax implications of the sum Employee received in connection
with the settlement memorialized in this Agreement.
RIGHT TO CONSULT WITH ATTORNEY AND VOLUNTARY SIGNING
Employee acknowledges that Employee has consulted with an attorney or was cautioned and
encouraged to consult with an attorney before signing this Agreement, that Employee has carefully
read this Agreement, that Employee understands each of its provisions, and that Employee has signed
it voluntarily. Employee further acknowledges that Wendy’s has taken no action interfering with
any right which Employee has to file any charge, suit, claim or other process with any federal,
state, or local judicial or administrative agency or body regarding Employee’s employment or the
termination thereof or any right to contact or seek the guidance or intervention of any such
agency.
Employee also acknowledges that Employee has been given twenty-one (21) days in which to make
a decision whether to enter into this Agreement. Employee further states that Employee has been
advised that Employee has seven (7) days following the signing of this Agreement to revoke the
Agreement and that this Agreement will not be made effective or enforceable until after the
revocation period. If the Agreement is revoked by Employee, Employee agrees to tender back to
Wendy’s all benefits and considerations provided by Wendy’s to which Employee would not be entitled
absent this Agreement.
ATTORNEYS’ FEES AND COSTS
In the event a dispute arises concerning terms of this Agreement, or the performance of any
party pursuant to the terms of this Agreement, the prevailing party may be entitled to recover,
without affecting any other remedy to which that party may be entitled, all of its costs and
reasonable attorneys’ fees incurred in connection with that dispute, regardless of whether a
lawsuit is filed or prosecuted to conclusion.
USE OF HEADINGS; ENTIRE AGREEMENT; MODIFICATIONS
Employee understands and agrees that the headings in this Agreement have been inserted for
convenience of reference only and do not in any way restrict or modify any of its terms or
provisions. Employee further understands that this Agreement sets forth the entire agreement
between the parties hereto, that there are no inducements or representations, other than this
contained in this Agreement, upon which Employee is relying in executing this Agreement. This
Agreement fully supersedes any and all prior agreements or understandings between the parties
hereto pertaining to the subject matter itself. This Agreement may not be modified or altered
except by a written instrument duly executed by both parties.
GOVERNING LAW
This Agreement shall be governed by the laws of the State of Ohio.
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INVALIDITY OF ANY PROVISION AFFECTS ONLY THAT PROVISION
All provisions of this Agreement are severable and this Agreement shall be interpreted and
enforced as if all completely invalid or unenforceable provisions were not contained therein, and
Employee and Wendy’s agree that same shall be enforced to the fullest extent permissible under the
laws and public policies applied in the jurisdiction in which enforcement is sought. If any
provision of this Agreement is invalid or unenforceable, such invalidity or unenforceability shall
not affect any of the other terms and conditions contained in this Agreement.
ASSIGNMENT
This Agreement may be freely assigned by Wendy’s, for any purpose, with or without notice, shall
inure to the benefit of any successors or assigns of Wendy’s, and shall be binding upon the heirs,
executors, and administrators of Employee.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands this 3rd day of
October, 2005.
AGREED:
| WENDY’S INTERNATIONAL, INC. | EMPLOYEE | |||||||
| By: | /s/ Xxxxxxx X. Xxxx | Print Name: Xxxxxx X. Xxxxxxx | ||||||
Title:
|
Executive Vice President | Signature: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Date: | September 28, 2005 | Date: October 3, 2005 | ||||||
| WITNESS | ||||||||
| Print Name: Xxxxx X. Xxxxxxx | ||||||||
| Signature: | /s/ Xxxxx X. Xxxxxxx | |||||||
| Date: October 3, 2005 | ||||||||
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NON-COMPETE ADDENDUM
This Non-Compete Addendum (“Addendum”) between Employee and Wendy’s is an attachment to the
Release and Settlement Agreement (“Agreement”) between Employee and Wendy’s is effective as of the
effective date of the Agreement. This Addendum is an integral part of the Agreement and is
incorporated therein by reference. Capitalized terms not defined herein shall have the meaning set
forth in the Agreement.
1. In addition to any confidentiality obligation contained in the Agreement, Employee
acknowledges and agrees that in the course of Employee’s employment with Wendy’s, Employee received
and otherwise had access to trade secrets and other information that is confidential and/or
proprietary to Wendy’s or its affiliates and subsidiaries (collectively the “Wendy’s Brands”),
including, but not limited to, information relating to strategic and other business plans,
strategies processes and policies, records, recipes, menus, pricing, techniques, consumer
requirements, consumer preferences, finances, operations, marketing, franchises, and business
techniques and methods, organizational structures, opinions and judgments of executives (including
Employee) respecting strategic and other business plans, strategies, processes and policies and
other confidential information, which information is highly valuable, special and unique to Wendy’s
Brands, is maintained as confidential by Wendy’s Brands, is not available to Wendy’s Brands’
competition and/or the general public, and the disclosure of which would cause Wendy’s Brands
serious competitive harm and loss of profits and goodwill (hereinafter “Confidential Information”).
Employee agrees that he shall not, at any time, directly or indirectly, use, disclose, in whole or
in part, to third parties, or otherwise misappropriate Wendy’s Brands Confidential Information
either while employed by Wendy’s (including the Notice Period) or at anytime thereafter, except
with the express written consent of Wendy’s or unless compelled by subpoena or court order, in
which case Employee will give Wendy’s reasonable advance notice of the information required to be
provided under such court order or subpoena. All files, records, documents, information, data and
similar items relating to the business of Wendy’s Brands, whether prepared by Employee or otherwise
coming into Employee’s possession, shall remain the property of Wendy’s and shall not be removed
from the premises of Wendy’s without the prior written consent of Wendy’s and in any event shall be
promptly delivered to Wendy’s on the first day of the Notice Period, or as otherwise agreed to by
Wendy’s.
2. The Non-Compete Payments and the other payments provided for in the Agreement constitute
consideration to which Employee is not or may not be otherwise entitled, and constitutes good and
fair consideration for the covenants contained herein.
3. Employee acknowledges and agrees that the Confidential Information Employee acquired
regarding Wendy’s Brands will enable Employee to injure Wendy’s Brands if Employee should compete
with Wendy’s. Therefore, Employee agrees that, from the effective date of the Release and
Settlement Agreement through December 29, 2006, Employee shall not, directly or indirectly, on his
own behalf or on behalf of any third party, as an employee, officer, director, partner, employee,
consultant, or in any other capacity, invest (other than investments in publicly traded companies
which constitute not more than 1% of the voting securities of any such company) or engage in any
business in whatever form that is competitive with the business of Wendy’s. This restriction
includes, without limitation, any business engaged in drive-thru or counter food service restaurant
business serving primarily hamburgers, chicken sandwiches or salads, typically referred to as
“Quick Service” restaurants (such as Burger King, XxXxxxxx’x, Xxxx in the Box, etc.) and also
includes any business engaged in real estate development for such businesses. This restriction
shall not prohibit Employee from accepting employment or otherwise becoming associated with a
Wendy’s Brand franchisee, but only in connection with activities associated with the operation of a
Wendy’s Brand franchise or activities that otherwise are not encompassed by the restrictions of
this paragraph, subject to any confidentiality obligations contained herein. The geographical
boundary for the restrictions contained herein shall be the Continent of North America.
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4. Employee agrees that, from the effective date of the Release and Settlement Agreement
through December 29, 2006, he shall not, directly or indirectly, on his own behalf or on behalf of
any third party, solicit, contact, hire, or otherwise encourage, any individual then employed with
Wendy’s Brands or who was employed by Wendy’s Brands within the preceding one (1) year, to leave
his or her employment with Wendy’s Brands and/or accept employment with any other employer or
enterprise, nor shall Employee in any manner assist any third party in any such activity. Employee
acknowledges that any attempt on the part of Employee to induce others to leave Wendy’s Brands’
employ, or any effort by Employee to interfere with Wendy’s Brands relationships with their other
employees, would be harmful and damaging to Wendy’s Brands.
5. Employee agrees that, from the effective date of the Release and Settlement Agreement
through December 29, 2006, he shall not, directly or indirectly, on his own behalf or on behalf of
any third party, solicit or otherwise engage in any conduct that has the purpose or effect of
interfering with any business relationship or potential business relationship of Wendy’s Brands,
including without limitation suppliers, franchisees, or investors, nor shall Employee in any manner
assist any third party in any such activity.
6. Employee acknowledges and agrees that the covenants contained herein, specifically
including without limitation the duration and geographical boundaries of the non-competition
provisions, are reasonable and necessary to protect the goodwill, trade secrets, and other
legitimate business interests of Wendy’s Brands and to protect Wendy’s Brands from unfair
competition. Employee further acknowledges and agrees that enforcement of the covenants contained
herein will cause Employee no undue hardship.
7. Employee acknowledges and agrees that any breach or threatened breach of these covenants
will cause Wendy’s immediate and irreparable harm, for which injunctive relief would be necessary
and appropriate. Employee therefore agrees that Wendy’s shall be entitled, without bond, to the
entry of temporary and permanent injunctions, orders of specific performance, and other equitable
relief issued by any court of competent jurisdiction to enforcing the covenants contained herein,
without limiting any additional remedies to which Wendy’s may be entitled. If a bond is required
by statute, rule, court order, or otherwise, Employee agrees that such bond shall be in the sum of
$100.00. Further, Employee agrees that, if a temporary injunction or restraining order is
dissolved, Employee’s only remedy would be its dissolution.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands this 3rd day of
October, 2005.
AGREED:
| WENDY’S INTERNATIONAL, INC. | EMPLOYEE | |||||||||
| By: | /s/ Xxxxxxx X. Xxxx | Print Name: Xxxxxx X. Xxxxxxx | ||||||||
Title:
|
Executive Vice President | Signature: | /s/ Xxxxxx X. Xxxxxxx | |||||||
| Date: | September 28, 2005 | Date: October 3, 2005 | ||||||||
| WITNESS | ||||||||||
| Print Name: Xxxxx X. Xxxxxxx | ||||||||||
| Signature: | /s/ Xxxxx X. Xxxxxxx | |||||||||
| Date: October 3, 2005 | ||||||||||
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