Exhibit 10-13 Shlemon Emp Agmt



Exhibit
10.13

 

CARRABBA'S
ITALIAN GRILL, INC.

Officer
Employment Agreement






THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into effective
April 27,
2000, by and
among STEVEN T.
SHLEMON, whose
address is PO Box
10028, Tampa, FL 33679-0028
(hereinafter referred to as “Employee”),
OS
RESTAURANT SERVICES, INC., a
Delaware corporation having
its principal office at 2202 N. West Shore Boulevard, 5th Floor,
Tampa, Florida 33607 (hereinafter
referred to as the
“Employer”) and CARRABBA'S
ITALIAN GRILL, INC., a
Florida corporation having
its principal office at 2202 N. West Shore Boulevard, 5th Floor,
Tampa, Florida 33607 (the “Company”).




W I T N E
S S E T H:




This
Agreement is made and entered into under the following
circumstances:




A. WHEREAS,
the Company and the Employer are affiliates of Outback Steakhouse, Inc. (“OSI”);
and




B.  WHEREAS,
the Company is engaged in the business of owning and operating restaurants known
as “Carrabba's
Italian Grill®”
utilizing a restaurant operating system and trademarks owned by or licensed to
the Company; and




C.  WHEREAS,
the Company and the Employer are parties to that certain Master Employment
Services Agreement (the “Services Agreement”) dated effective as of January
01, 2001,
pursuant to which the Employer agreed to hire and lease to the Company
operations employees necessary for the operation of the Company’s Carrabba's
Italian Grill®
restaurants; and




D.  WHEREAS,
pursuant to the Services Agreement, the Employer desires, on the terms and
conditions stated herein, to employ Employee and lease Employee to the Company
as President of the
Company; and




E.  WHEREAS,
the Employee desires, on the terms and conditions stated herein, to be employed
by the Employer and leased to the Company as President.




NOW,
THEREFORE, in consideration of the foregoing recitals, and of the premises,
covenants, terms and conditions contained herein, the parties hereto agree as
follows:




1.  Employment
and Term.
Subject
to earlier termination as provided for in Section
8 hereof,
the Employer hereby employs the Employee, and the Employee hereby accepts
employment with the Employer, to be leased to the Company as President of the
Company for a term commencing on April 27,
2000 and
expiring five
(5)
thereafter (“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 Employer and the Company that the
Employee (i) is not subject to any written nonsolicitation
or noncompetition agreement affecting the Employee’s employment with the
Employer and the Company (other than any prior agreement with the Company), (ii)
is not subject to any written confidentiality or nonuse/nondisclosure agreement
affecting the Employee’s employment with the Employer and the Company (other
than any prior agreement with the Company), and (iii) has brought to the
Employer and the Company no trade secrets, confidential business information,
documents, or other personal property of a prior employer.























3.  Duties. As
President of the
Company, the Employee shall: 




(a)  diligently
and faithfully perform all of the duties and functions as may be assigned to the
Employee in such capacity by the Board of Directors, Chief Executive Officer or
President of the Employer or the Company; and




(b)  not to
create a situation that results in termination for “cause” as that term is
defined in Section
8 hereof.
The Employee shall be required hereunder to devote one hundred percent (100%) of
the Employee’s full business time and effort to the business affairs of the
Employer and the Company. The Employee shall be responsible for directly
reporting to the President of the Employer and the Company on all matters for
which the Employee is responsible.




Employee
shall: (i) devote the Employee’s entire business time, attention, and energies
to the business of the Company and the Employer, (ii) faithfully and competently
perform the Employee’s duties hereunder, and (iii) not create a situation
constituting Cause as defined in Section
8. 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 Employer, the Company or their
affiliates, including but not limited to the insider trading 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
Employer or the Company, also serve as an officer of any subsidiary or affiliate
of the Employer, the Company or OSI as the Employer or the Company shall
request. In such capacity, Employee shall be responsible generally for all
aspects of such office. All terms, conditions, rights and obligations of this
Agreement shall be applicable to Employee while serving in such office as though
Employee and such subsidiary or affiliate of the Employer, the Company or OSI
had separately entered into this Agreement, except that the Employee shall not
be entitled to any compensation, vacation, fringe benefits, automobile allowance
or other remuneration of any kind whatsoever from such subsidiary or affiliate
of the Employer, the Company or OSI.




4.  Compensation.
During
the Term of Employment, the Employee shall be entitled to an annual base salary
equal to at least the annual salary of Employee on the effective date hereof,
payable in equal biweekly installments by the Employer, to be reviewed annually
by the Employer.




5.  Vacation.
Employee
shall be entitled to three
(3) weeks
paid vacation (selected by Employee, but subject to the reasonable business
requirements of the Company and the Employer as determined by Employee’s
supervisor) during each full year during the Term of Employment. Vacation
granted but not used in any year shall be forfeited at the end of such one-year
period and may not be carried over to any subsequent year.




6.  Fringe
Benefits.
In
addition to any other rights the Employee may have hereunder, the Employee shall
also be entitled to receive those fringe benefits, including, but not limited
to, complimentary food, life insurance, medical benefits, etc., if any,
as may be provided by the Employer to similar employees of the Employer. The
Employee shall not be entitled to any benefits of any kind provided by the
Company to its employees.























7.  Automobile
Allowance; Expenses.




(a) During
the Term of Employment, the Employer shall pay to Employee a monthly automobile
allowance in the amount of FOUR
HUNDRED AND 00/100 DOLLARS
($400.00). Such
automobile allowance shall be in lieu of reimbursement by the Employer or the
Company of the costs to Employee of purchasing and maintaining an automobile,
and all operational expenses, including, without limitation, mileage, repairs,
insurance, etc., in connection therewith; provided, however, that the Employer
or the Company shall reimburse Employee for the cost of gasoline used in
conducting the Company business. Employee shall, at all times during the Term of
Employment, maintain an automobile for use in connection with the performance of
Employee’s duties and shall maintain in full force and effect, at all times,
with the Employer and the Company as additional loss payees, at least
TWO
HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS
($250,000.00) in
property damage and FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS
($500,000.00) in
personal liability automobile insurance, with an additional ONE
MILLION DOLLARS
($1,000,000.00)
personal liability umbrella. Such
insurance shall be written with an insurance carrier reasonably acceptable to
the Employer and the Company and shall provide that such insurance cannot be
changed, cancelled or permitted to expire without at least ten (10) days prior
written notice to the Employer and the Company.




(b) Subject
to approval by the Chief Financial Officer of the Company and the Employer and
compliance with the Company’s and the Employer’s policies, the Employee may
incur reasonable expenses on behalf of and in furtherance of the business of the
Company and the Employer. Upon approval of such expenses by the Chief Financial
Officer, the Company or the Employer, as applicable, shall promptly reimburse
the Employee for all such expenses upon presentation by the Employee, from time
to time, of appropriate receipts or vouchers for such expenses that are
sufficient in form and substance to satisfy all federal tax requirements for the
deductibility of such expenses by the Company or the Employer, as
applicable.




8. Termination.
Notwithstanding
the provisions of Section
1 hereof,
the Term of Employment shall terminate prior to the end of the period of time
specified in Section
1,
immediately upon:




(a)  The death
of the Employee; or




(b)  The
Employee’s Disability during the Term of Employment. For purposes of this
Agreement, the term “Disability” shall mean the inability of the Employee,
arising out of any medically determinable physical or mental impairment, to
perform the services required of the Employee hereunder for a period of ninety
(90) consecutive days; or




(c)  The
existence of Cause. For purposes of this Agreement, the term “Cause” shall be
defined as:




(i) Failure
of the Employee to perform the duties assigned to the Employee in a manner
satisfactory to the Employer, in its sole discretion; provided, however, that
the Term of Employment shall not be terminated pursuant to this
subparagraph (i) unless the Employer 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 Employer, in its sole discretion, within such thirty (30)
day period (or if during such thirty (30) day period the Employer determines
that the Employee is not making reasonable, good faith efforts to cure the
deficiencies to the 

 




















satisfaction
of the Employer, in its sole discretion, within such thirty (30) day period (or
if during such thirty (30) day period the Employer determines that the Employee
is not making reasonable, good faith efforts to cure the deficiencies to the
satisfaction of the Employer), the Employer shall have the right to immediately
terminate the Term of Employment. The provisions of this subparagraph (i)
may be invoked by the Employer 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 Employer from issuing any subsequent
Notices of Deficiency; or



 

 

(ii) Any
dishonesty by the Employee in the Employee’s dealings with the Company or the
Employer, 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 Employer, the Company or their
affiliates (material published policies include, but are not limited to, the
Company’s discrimination and harassment policy, responsible alcohol policy and
insider trading policy).

 

              (d)  At the
election of the Employer, upon the sale of a majority ownership interest in the
Employer or the Company or substantially all of the assets of the Employer or
the Company; or

 

              (e)  At the
election of the Employer, upon the determination by the Company to cease the
Company’s business operations.




For all
purposes of this Agreement, termination for Cause shall be deemed to have
occurred in the event of the Employee’s resignation when, because of existing
facts and circumstances, subsequent termination for Cause can be reasonably
foreseen.




In the
event of termination of this Agreement pursuant to this Section
8, the
Employee or the Employee’s estate, as appropriate, shall be entitled to receive
(in addition to any fringe benefits payable upon death in the case of the
Employee’s death) the base salary provided for herein up to and including the
effective date of termination, prorated on a daily basis. 




9. Noncompetition.





(a)  During
Term. During
the Employee’s employment with the Employer, the Employee shall not,
individually or jointly with others, directly or indirectly, whether for the
Employee’s own account or for that of any other person or entity, engage in or
own or hold any ownership interest in any person or entity engaged in a
restaurant business, and the Employee shall not act as an officer, director,
employee, partner, independent contractor, consultant, principal, agent,
proprietor, or in any other capacity for, nor lend any assistance (financial or
otherwise) or cooperation to any such person or entity. 




(b)  Post
Term. For a
continuous period of two (2) years commencing on termination of the
Employee’s employment with the Employer, regardless of any termination pursuant
to Section
8 or any
voluntary termination or resignation by the
Employee, the Employee
shall not, individually or jointly with others, directly or indirectly, whether
for the
Employee’s own account or for that of any other person or entity, engage in or
own or hold any ownership interest in any person or entity engaged in a
restaurant business 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 Employer, the Company, OSI or any of their 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 Employer, the Company, OSI or any of
their affiliates, or any proposed restaurant to be owned or operated by any of
the foregoing, and Employee shall not act as an officer, director, employee,
partner, independent contractor, consultant, principal, agent, proprietor, or in
any other capacity for, nor lend any assistance (financial or otherwise) or
cooperation to, any such person, or entity. For purposes of this Section
9(b),
Restaurants owned or operated by the Employer, the Company or OSI shall include
restaurants operated or owned by an affiliate of the Employer, the Company or
OSI, any successor entity to the Employer, the Company or OSI, and any entity in
which the Employer, the Company, OSI or any of their affiliates has an interest,
including but not limited to, an interest as a franchisor. The term “proposed
restaurant” shall include all locations for which the Employer, the Company,
OSI, or their franchisees or affiliates is conducting active, bona fide
negotiations to secure a fee or leasehold interest with the intention of
establishing a restaurant thereon.




(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 Employer, the Company, OSI or their affiliates, including,
without limitation, any secret or confidential information relating to the
business, customers, trade or industrial practices, trade secrets, technology,
recipes or know-how of any of the Employer, the Company, OSI or their
affiliates. Moreover, during the Employee’s employment with the Company and for
two (2) years thereafter, Employee shall not offer employment to any employee of
the Employer, the Company, OSI, their franchisees or affiliates, or otherwise
solicit or induce any employee of the Employer, the Company, OSI, their
franchisees or affiliates to terminate their employment, nor shall Employee act
as an officer, director, employee, partner, independent contractor, consultant,
principal, agent, proprietor, owner or part owner, or in any other capacity, for
any person or entity that solicits or otherwise induces any employee of the
Employer, the Company, OSI, their franchisees or affiliates to terminate their
employment.




11. Employer
or Company Property: Employee Duty to Return. All
Employer or Company products, recipes, product specifications, training
materials, employee selection and testing materials, marketing and advertising
materials, special event, charitable and community activity materials, customer
correspondence, internal memoranda, products and designs, sales information,
project files, price lists, customer and vendor lists, prospectus reports,
customer or vendor information, sales literature, territory printouts, call
books, notebooks, textbooks, and all other like information or products,
including all copies, duplications, replications, and derivatives of such
information or products, now in the possession of Employee or acquired by
Employee while in the employ of the Employer or the Company, shall be the
exclusive property of the Employer and the Company and shall be returned to the
Employer or the Company no later than the date of Employee’s last day of work
with the Employer or the Company.




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 Employer or the Company (whether or not
actually conceived during regular business hours) and for a period of six (6)
months subsequent to the termination or expiration of such employment and (ii)
related to the business of the Employer or the Company, shall be disclosed in
writing promptly to the Employer and the Company and shall be the sole and
exclusive property of the Employer and the Company. An

 




















invention,
idea, recipe, process, program, software or design (including an improvement)
shall be deemed “related to the business of the Employer or the Company” if (a)
it was made with equipment, supplies, facilities, or confidential information of
the Employer or the Company, (b) results from work performed by Employee for the
Employer or the Company, or (c) pertains to the current business or demonstrably
anticipated research or development work of the Employer or the Company.
Employee shall cooperate with the Employer and the Company and their attorneys
in the preparation of patent and copyright applications for such developments
and, upon request, shall promptly assign all such inventions, ideas, recipes,
processes, and designs to the Employer or the Company. The decision to file for
patent or copyright protection or to maintain such development as a trade secret
shall be in the sole discretion of the Employer and the Company, and Employee
shall be bound by such decision. Employee shall provide, on the back of this
Employment Agreement, a complete list of all inventions, ideas, recipes,
processes, and designs if any, patented or unpatented, copyrighted or
non-copyrighted, including a brief description, that the Employee made or
conceived prior to Employee’s employment with the Employer and the Company and
that therefore are excluded form the scope of this Agreement.




13. Employer’s
and Company’s Promise to Give Employee Trade Secrets and
Training. In
return for Employee’s agreement not to use or disclose Employer’s or the
Company’s trade secrets, training, systems and confidential proprietary business
methods, Employer and the Company unconditionally promise to give Employee
within ninety (90) days of the signing of this contract trade secrets,
specialized training and other confidential proprietary business
methods.




Specifically,
Employer and the Company unconditionally promise to give Employee one-on-one
training from executives, trainers and senior employees of Employer, the Company
or their affiliates. Further, the training will include training and information
concerning procedures and confidential proprietary methods Employer and the
Company use to obtain and retain business from their customer base, operations
in Employer’s and the Company’s home office, marketing and sales techniques, and
information regarding the confidential information listed in Section
12(b) of this
Agreement. Further, after the ninety (90) days, as Employer and the Company
develop (during Employee’s employment with Employer) additional trade secrets,
employee surveys and analyses, financial data and other confidential proprietary
business methods and overall marketing plans and strategies, Employer and the
Company promise to continue to provide, on a periodic basis, said confidential
information and additional training and analysis from their executives, trainers
and/or senior employees to Employee for so long as Employee is employed by
Employer as President.




14. Employee’s
Promise Not to Disclose Trade Secrets and Confidential
Information. Employee
understands and agrees that Employer and the Company will provide unique and
specialized training and confidential information concerning Employer’s and the
Company’s business operations, including, but not limited to, recipes, product
specifications, restaurant operating techniques and procedures, marketing
techniques and procedures, financial data, processes, vendors and other
information that was developed and maintained at considerable effort and expense
to Employer and the Company, for the Employer’s and the Company’s sole and
exclusive use, and which if used by the Employer’s or the Company’s competitors
would give them an unfair business advantage. Employee believes the
unconditional promise to provide said information is sufficient consideration
for Employee’s promise to adhere to the restrictive covenants of Section
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 Employer to employ the
Employee and to enter into this Agreement with the Employee, and Employee hereby
acknowledges that employment with the Employer is sufficient consideration for
these restrictive covenants.























The
restrictive covenants of Section
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 Employer or the Company, whether predicated upon this Agreement or
otherwise, shall not constitute a defense to the enforcement of any restrictive
covenant. The Employer and the Company have fully performed all obligations
entitling them to the restrictive covenants of Section
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 Employer or 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 Employer or the Company of any such restrictive covenant, nor
shall it give rise to any claim or cause of action by Employee against the
Employer or the Company.




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 and the Employer’s interests. Employee acknowledges that the Company
is the owner or the licensee of the Carrabba's
Italian Grill®
trademarks, and the owner or the licensee of the Carrabba's
Italian Grill®
restaurant operating system and will provide to Employee training in and
confidential information concerning the Carrabba's
Italian Grill®
restaurant operating system 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 period or geographical area that is determined to be
reasonable, nonarbitrary, and not against public policy may be enforced against
Employee. If Employee shall violate any of the covenants contained herein and if
any court action is instituted by the Company or the Employer to prevent or
enjoin such violation, then the period of time during which the Employee’s
business activities shall be restricted, as provided in this Agreement, shall be
lengthened by a period of time equal to the period between the date of the
Employee’s breach of the terms or covenants contained in this Agreement and the
date on which the decree of the court disposing of the issues upon the merits
shall become final and not subject to further appeal.




In the
event it is necessary for the Company or the Employer to initiate legal
proceedings to enforce, interpret or construe any of the covenants contained in
Section
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 and the Employer for which the
remedy at law will be inadequate and would be difficult to ascertain and
therefore, in the event of the breach or threatened breach of any such
covenants, the Company and the Employer shall be entitled, in addition to any
other rights and remedies they may have at law or in equity, to obtain an
injunction to restrain Employee from any threatened or actual activities in
violation of any such covenants. Employee hereby consents

 




















and
agrees that temporary and permanent injunctive relief may be granted in any
proceedings that might be brought to enforce any such covenants without the
necessity of proof of actual damages, and in the event the Company or the
Employer does apply for such an injunction, Employee shall not raise as a
defense thereto that the Company or the Employer has an adequate remedy at
law.




18. Assignability.
This
Agreement and the rights and duties created hereunder, shall not be assignable
or delegable by Employee. The Employer and 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 Employer, the
Company, any affiliate of the Company, or any successor to the Company’s
interest in the Carrabba's
Italian Grill®
restaurants, 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 Employer or the Company arising out of a breach or threatened breach of this
Agreement or out of the relationship established by this Agreement, exclusively
in the United States District Court for the Middle District of Florida, Tampa
Division, or in the Circuit Court in and for Hillsborough County, Florida;
Employee hereby agrees that any action brought by Employee, alone or in
combination with others, against the Employer or the Company, whether arising
out of this Agreement or otherwise, shall be brought exclusively in the United
States District Court for the Middle District of Florida, Tampa Division, or in
the Circuit Court in and for Hillsborough County, Florida. 




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 Employer or the Company, their agents, or their attorneys,
in prosecuting or defending claims, suits, and disputes brought on behalf of or
against one or both of them and in which Employee is involved or about which
Employee has knowledge.




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. Entire
Agreement; Counterparts.
This
Agreement and the agreements referred to herein constitute the entire agreement
between the parties hereto concerning the subject matter hereof, and supersede
all prior memoranda, correspondence, conversations, negotiations and agreements.
This Agreement may be executed in several identical counterparts that together
shall constitute but one and the same Agreement.




IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.









	 	 	
      “EMPLOYEE”
	 
				
	
      _____________________________
	 	
      ________________________________
	 
	
      Witness
	 	
      STEVEN
      T. SHLEMON
	 
				
	
      _____________________________
	 	 	 
	
      Witness
	 	 	 
				
				
	 	 	
      “EMPLOYER”
	 
				
				
	
      Attest:
	 	
      OS
      RESTAURANT SERVICES, INC.,
      Delaware corporation
	 
				
	 	 	 	 
				
	 	 	 	 
				
	
      By:____________________________
	 	
      By:____________________________
	 
	
          
      JOSEPH J. KADOW, Secretary
	 	
          
      ROBERT S. MERRITT,
      Senior
      Vice President
	 
				
	 	 	 	 
				
	 	 	
      “COMPANY”
	 
				
				
	
      Attest:
	 	
      CARRABBA'S
      ITALIAN GRILL, INC., a
      Florida corporation
	 
				
				
	 	 	 	 
				
	
      By:____________________________
	 	
      By:____________________________
	 
	
          
      JOSEPH J. KADOW, Secretary
	 	
          
      ROBERT S. MERRITT,
      Senior
      Vice President