This Amended and Restated Employment Agreement ("Agreement")
effective as of the closing of the Securities Purchase Agreement, as
defined below (the "Effective Date"), by and between CARROLS CORPORATION
("Employer"), a corporation organized under the laws of Delaware and whose
address for the purposes of this agreement is 968 James Street, Syracuse,
New York, 13217 and Alan Vituli whose principal residence is Old Road,
Windham, New York 12496 ("Employee"):
W I T N E S S E T H:
WHEREAS, pursuant to the terms of an employment agreement dated
January 1, 1995 between Employer and Employee (the "Prior Employment
Agreement"), Employee has been and is presently employed by the Employer as
its Chairman of the Board and Chief Executive Officer;
WHEREAS, concurrently with the execution and delivery hereof,
pursuant to a certain Securities Purchase Agreement (the "Securities
Purchase Agreement") dated as of March 6, 1996, among Employer, Carrols
Holdings Corporation ("Holdings"), Atlantic Restaurants, Inc. ("ARI"),
Bahrain International Bank (E.C.) for the limited purposes set forth
therein, and the selling securityholders of Holdings as listed on Schedule
I thereof (the "Selling Securityholders"), ARI has acquired substantially
all of the outstanding common stock of Holdings; and
WHEREAS, as part of the transactions contemplated by the
Securities Purchase Agreement, the parties thereto have agreed that
Employer and Employee shall enter into this Amended and Restated Employment
Agreement which shall supersede in its entirety the Prior Agreement upon
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein set forth and other good and valuable consideration, the
receipt and adequacy of which is mutually acknowledged, it is agreed by and
between the parties as follows:
1. DEFINITIONS
For purposes of this Agreement, unless the context requires
otherwise, the following words and phrases shall have the meanings
indicated below:
"Change of Control" shall mean:
(a) The acquisition (other than from the Employer) by any
person, entity or "group", within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act"),
excluding for this purpose any employee benefit plan of the Employer or its
subsidiaries which acquires beneficial ownership of voting securities of
the Employer, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act), of 50% or more of either the then
outstanding shares of common stock or the combined voting power of the
Employer's then outstanding voting securities entitled to vote generally in
the election of directors;
(b) Individuals who, as of the close of business on the
date as of or immediately following the closing of the Securities Purchase
Agreement on which the new Board of Directors of the Employer is elected
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board of Directors; provided that any person becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Employer's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board (other than
an election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest
relating to the election of Directors of the Employer, as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
shall be for purposes of this Agreement, considered as though such person
were a member of the Incumbent Board, or
(c) Approval by the stockholders of the Employer of a
reorganization, merger, or consolidation, in each case, with respect to
which persons who were the stockholders of the Employer immediately prior
to such reorganization, merger or consolidation do not, immediately
thereafter, own more than 50% of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, or a liquidation
or dissolution of the Employer or of the sale of all or substantially all
of the assets of the Employer.
"Cause" shall mean: (1) a felony conviction of the Employee (or a
plea of no lo contendere in lieu thereof); (2) the unauthorized disclosure
of confidential proprietary information of the Employer which disclosure
the Employee knows or reasonably should have known would be reasonably
likely to result in material damage to the Employer; (3) the breach by the
Employee of any material provision of this Agreement, which breach, if
curable, is not remedied within thirty (30) days after the Employee's
receipt of written notice thereof provided, however, that the Employer need
not permit the Employee to cure any breach which has been the subject of a
prior written notice; (4) the engagement in self dealing in breach of
fiduciary duties with respect to the Employer's assets or properties unless
disclosed to and approved by the Board of Directors; (5) an act of gross
misconduct in connection with the Employee's duties hereunder; or
(6) habitual or material neglect of the Employee's duties to the Employer
(as determined in good faith by the Board of Directors, continuing after
prior written notice to the Employee).
"Good Reason" shall mean (i) the material failure of the Employer
to comply with the provisions of this Agreement which failure shall not
cease promptly and in no event more than ten (10) days after the Employer's
receipt of written notice from the Employee objecting to such conduct; (ii)
any purported termination by the Employer of the Employee's employment
other than as expressly permitted in this Agreement; or (iii) the
assignment to Employee of duties and responsibilities inconsistent with
those duties and responsibilities customarily assigned to individuals
holding the position of Chairman and Chief Executive Officer of a company
of comparable size or the substantial reduction by Employer of Employee's
duties and responsibilities.
2. REPRESENTATIONS AND WARRANTIES
Employee represents and warrants that he is not subject to
any restrictive covenants or other agreements or legal restrictions in
favor of any person which would in any way preclude, inhibit, impair or
limit his employment by the Employer or the performance of his duties, as
contemplated herein.
3. EMPLOYMENT
The Employer hereby employs Employee and Employee accepts
such employment as Chairman and Chief Executive Officer of the Employer.
As its Chairman and Chief Executive Officer, Employee shall render such
services to the Employer as are customarily rendered by the Chairman and
Chief Executive Officer of comparable companies and as required by the
articles and by-laws of the Employer. Employee accepts such employment
and, consistent with fiduciary standards which exist between an employer
and an employee shall perform and discharge the duties that may be assigned
to him from time to time by the Employer in an efficient, trustworthy and
businesslike manner. It is specifically agreed that nothing in this
Agreement shall prohibit Employee from (i) serving on corporate, civic or
charitable boards or committees; (ii) engaging directly or indirectly, in
activities with other public or private companies or ventures; or (iii)
making investments in any capacity whatsoever, provided only that such
activities or any of them do not significantly impair Employee's
performance of his duties for the Employer.
4. PLACE OF EMPLOYMENT
During the Term, the Employee shall render services where
and as reasonably required by the Employer. In conformance with the
foregoing and not in limitation thereof, Employee agrees to take such trips
as shall be consistent with or reasonably necessary in connection with his
duties. Employer will also maintain an office within ten (10) miles of the
Employee's abode determined as of the date hereof and shall furnish the
Employee both at the Employer's principal office and at such other location
with an office and secretarial help and such other assistance, facilities
and services consistent with Employee's position and necessary for the
adequate performance of his duties.
5. TERM
Subject to the provisions of Section 10 hereof, the term of
this Agreement shall be deemed to have commenced on January 1, 1995 and
shall expire on December 31, 1997 (the "Initial Term"). This Agreement
shall be automatically renewed for successive twelve (12) month periods on
all the remaining terms and conditions set forth herein, unless either
party elects not to renew this Agreement by giving written notice to the
other at least ninety (90) days before a scheduled expiration date. The
Initial Term of this Agreement together with all renewals and extensions
thereof are collectively referred to herein as the "Term."
6. COMPENSATION
(a) As compensation for all services rendered and to be
rendered by Employee hereunder and the fulfillment by Employee of all of
his obligations herein, the Employer shall pay Employee a base salary (the
"Base Salary") at the rate of $350,000 for the first year of the Term
payable in accordance with the Employer's customary payroll practices. The
Base Salary for the second year of the Term ("Adjusted Base Salary") shall
be sum of the Base Salary and the product of $350,000 multiplied by the
percentage increase in the consumer price index (as defined below,
hereinafter "CPI Index") from December, 1994 to December, 1995 which
percentage increase shall be calculated as follows: [(x minus y) divided
by y] where (x) equals the CPI Index for December, 1995 and (y) equals the
CPI Index for December, 1994. The Base Salary for the third year of the
term shall be the sum of the Adjusted Base Salary and the product of the
Adjusted Base Salary multiplied by the percentage increase in the CPI Index
from December, 1995 to December, 1996 as calculated above substituting 1996
for 1995 in (x) and 1995 for 1994 in (y). The Employee's Base Salary as of
January 1, 1996 is $360,150.
By way of illustration, if the CPI Index for December,
1995 is 120 and the CPI Index for December, 1994 is 115, the percentage
increase in the CPI Index is 4.35% and the Base Salary is increased by
$15,225 to $365,225 for 1996. If the CPI Index for December, 1996 is 122,
the percentage increase (over the 1995 CPI Index) is 1.67% and the Adjusted
Base Salary is increased by $6,087 to $371,312.
The CPI Index shall be the Consumer Price Index as
prepared by the Bureau of Labor Statistics of the United States Department
of Labor for All Urban Wage Earners and Clerical Workers, All items (1982-
84=100) for New York City (the
"Consumer Price Index") or an equivalent measure of increase in the cost of
living if such Consumer Price Index is not then being issued.
(b) The Base Salary for the twelve (12) month period
commencing January 1, 1998 and each successive twelve (12) month period of
the Term shall be increased in accordance with the recommendation of the
Compensation Committee of the Board of Directors of the Employer.
(c) Employee will participate in the Executive Bonus Plan
of the Employer attached hereto as Exhibit A. Notwithstanding any
provision contained herein or in the Executive Bonus Plan to the contrary,
no amendment to the Executive Bonus Plan shall have a material adverse
impact on the Employee. If the Executive Bonus Plan is discontinued, the
Employer agrees to establish a plan which will provide similar potential
benefits to the Employee.
(d) Employee will also be eligible to participate in all
phantom and/or actual stock option programs applicable to executive
employees. Employee shall be granted options in accordance with the
provisions set forth on Exhibit 1 which is attached hereto and made part
hereof.
(e) The Employer shall deduct from the compensation
described in (a),(b),(c) and (d) above, any Federal, state or city
withholding taxes, social security contributions and any other amounts
which may be required to be deducted or withheld by the Employer pursuant
to any Federal, state or city laws, rules or regulations.
(f) Any compensation otherwise payable to the Employee
pursuant to this Section in respect of any period during which the Employee
is disabled (as contemplated in Section 10) shall be reduced by any amounts
payable to the Employee for loss of earnings or the like under any
insurance plan or policy the premiums for which are paid for in their
entirety by the Employer.
7. BUSINESS EXPENSES
(a) The Employer shall pay, on behalf of Employee, all dues
to professional societies and other organizations as are customarily joined
by individuals holding the position of Chairman and Chief Executive Officer
of businesses similar to the Employer. The Employer will require and shall
reimburse the Employee for his out of pocket cost of one complete physical
examination per fiscal year of the Term.
(b) The Employer agrees that the Employee is authorized to
incur reasonable expenses in the performance of his duties hereunder and
agrees that all reasonable expenses incurred by Employee in the discharge
and fulfillment of his duties for the Employer, as set forth in Section 3,
will be promptly reimbursed or paid by the Employer upon written
substantiation signed by Employee, itemizing said expenses and containing
all applicable vouchers. Employee shall be entitled to receive prompt
reimbursement for all reasonable travel and entertainment expenses and the
costs of attending conferences and seminars, so long as such expenses
relate to Employee's ability to serve the best interests of the Employer.
In addition, within 30 days of the rendition of the applicable invoices,
Employer shall reimburse Employee annually for the reasonable costs
incurred by Employee in tax planning and tax return preparation in an
annual amount not to exceed $5,000.
8. BENEFITS AND INSURANCE
(a) The Employer agrees that, during the Term, the Employee
shall be insured under all insurance policies and shall receive all
benefits under all pension and welfare benefit plans (including, without
limitation group life, medical, major medical and disability insurance)
that the Employer may maintain and keep in force during the Term of the
Agreement for the benefit of the Employer's employees, subject to the
terms, provisions and conditions of such pension and welfare benefit plans
or insurance and the agreements with underwriters relating to same. In
addition, Employer will provide medical and major medical insurance for
Employee and his spouse during the Term and for the remainder of their
respective lives, notwithstanding the termination of Employee's employment
hereunder, whether voluntary or involuntary, or his Disability or death,
consistent with the level and type of coverage provided to Employee by
Employer's policy at March 1, 1996, provided however, that the provisions
of this Section 8(a) will not require the Employer to continue post
retirement or post employment medical coverage for the Employee or his
spouse in the event the Employer terminates its post retirement and/or post
employment coverage on a company-wide basis. In the event of such
termination of coverage, the Employee shall be entitled to obtain a
replacement policy consistent with the level and type of coverage described
in the preceding sentence covering the Employee and his spouse and the
Employer shall reimburse the Employee on an annual basis with respect to
the cost of the same.
(b) ITT Hartford life insurance policy No. U01732239 (the
"Policy"), owned by Shirley Vituli and Arthur Kunofsky as Trustees under
the Alan Vituli Insurance Trust, dated June 22, 1989 (the "Owner"), which
provides a death benefit of One Million Five Hundred Thousand Dollars
($1,500,000), is presently maintained by Employer pursuant to a Split-
Dollar Insurance Agreement, dated July 1, 1995, as amended April __, 1996
(the "Split-Dollar Agreement"). Employer acknowledges such agreement and
agrees to be bound by its provisions, provided however, that the sum total
of the Employer's outstanding premium payments shall be returned to the
Employer from the proceeds of the cash value of the policy if surrendered
during the Employee's lifetime, and in the event of Employee's death, the
Employer shall be entitled to receive that portion of the death benefit in
excess of $1,500,000 up to but not exceeding the sum total of the
Employer's outstanding premium payments from the proceeds of the death
benefit.
(c) Pursuant to the Split-Dollar Agreement, until the
earlier to occur of Employee's 65th birthday or Employee's death, Employer
shall, on or before the due date of each premium, make the premium payments
on the Policy. Employer shall provide written proof of such payment to
Employee within fifteen (15) days of the due date of the premium. If
Employer shall fail to supply such proof, Employee shall be entitled to pay
the premium and be reimbursed by Employer.
9. VACATION
Employee shall be entitled to an aggregate of four (4) weeks
paid vacation during each year of the Term at time or times reasonably
agreeable to both the Employee and the Employer, it being understood that
any portion of such vacation not taken in such year shall not be available
to be taken during any other year.
10. TERMINATION; CHANGE OF CONTROL; DEATH; DISABILITY
(a) Subject to the provisions of this Agreement, either the
Employer or the Employee may terminate the employment of the Employee on
the thirtieth (30th) day after receipt of written notice by the other party
hereto.
(b) If within six (6) months following a Change of Control
occurring during the Term, the employment of the Employee hereunder is
terminated without Cause, the Employee shall be paid: (1) his accrued but
unpaid Base Salary and vacation as of the date of termination; (2) a cash
payment in an amount equal to 2.99 multiplied by the average of the sum of
the Base Salary and the Annual Bonus paid or deferred in accordance with
the Executive Bonus Plan in the five calendar years prior to the date of
termination (the "Five-Year Compensation Average"); and (3) all amounts
previously deferred under the Executive Bonus Plan (together with any
interest accrued thereon) and not yet paid by the Employer.
(c) If the Employer (1) during the Term enters into a
binding written agreement to engage in a transaction which, if consummated,
would result in a Change of Control; (2) such transaction is consummated
within six (6) months after the last date of the Term; and (3) subsequent
to entering into such agreement the Employer terminates employment of the
Employee without Cause, the Employer shall pay to the Employee an amount
equal to the payment set forth in Section 10(b) hereof.
(d) If the Employee terminates his employment pursuant to
Section 10(a) hereof without Good Reason or the Employer terminates the
employment of the Employee hereunder for Cause, the Employer's only
obligations hereunder shall be to pay to the Employee his accrued but
unpaid Base Salary and vacation pay as of the date of termination plus any
compensation or bonus payments previously deferred by the Employee under
the Executive Bonus Plan (together with any interest accrued thereon) and
not yet paid by the Employer and to continue any and all such benefits
and/or insurance policies as required by Section 8 hereof. The Employee
shall have no further obligation to perform services for the Employer.
(e) If the Employer terminates employment of the Employee
hereunder without Cause, or the Employee terminates for Good Reason, the
Employer shall pay to the Employee (1) his accrued but unpaid Base Salary
and vacation as of the date of termination; (2) a cash payment in an amount
equal to 2.99 multiplied by the Employee's Five Year Compensation Average;
(3) all amounts previously deferred by the Employee under the Executive
Bonus Plan (together with any interest accrued thereon) and not yet paid by
the Employer; (4) fully vest the Employee in any stock option which has
been granted previously to the Employee; and (5) continue any and all such
benefit and insurance policies as required by Section 8 hereof.
(f) If the Employee becomes physically or mentally disabled
during the Term so that he is unable to perform the services required of
him pursuant to this Agreement for a period of six (6) successive months,
or an aggregate of six (6) months in any twelve (12) month period, the
Employer may give the Employee written notice of its intention to terminate
the services of the Employee hereunder. In such event, the Employee's
employment with the Employer shall terminate effective on the thirtieth
(30th) day after receipt of such notice by the Employee (the "Disability
Effective Date") provided the Employee shall not have returned to the
performance of the Employee's duties. Subject to the provisions of Section
6(f), in the event the Employee's employment is terminated by reason of
disability, the Employer's only obligations hereunder shall be (1) to
continue the Base Salary (at the rate in effect on the Disability Effective
Date) for a period of three (3) years from the Disability Effective Date;
(2) to pay a pro rata portion of the Annual Bonus for the year in which the
Employee's employment is terminated as and when such amounts are due and
payable under the term of the Executive Bonus Plan; (3) to pay all amounts
previously deferred under the Executive Bonus Plan together with any
interest accrued thereon) as prescribed by the Employee; (4) to fully vest
the Employee in any stock option which has been granted previously to the
Employee; and (5) to continue any and all such benefits and insurance
policies as required by Section 8 hereof.
(g) In the event of the Employee's death during the Term,
the Employer shall pay to his spouse, if he is survived by a spouse, or if
not, to the estate of the Employee, (1) the Employee's accrued and unpaid
Base Salary (at the rate in effect on the date of death) as of the date of
death; (2) a pro rata share of the Annual Bonus for the year of his death
as and when such amounts are due and payable under the term of the
Executive Bonus Plan; (3) all amounts previously deferred under the
Executive Bonus Plan (together with any interest accrued thereon) and not
yet paid by the Employer in the manner prescribed by the executor of the
Employee's estate and (4) continue any and all such benefits and insurance
policies as required by Section 8 hereof. In the event of the Employee's
death during the Term, the Employee shall fully vest in any stock option
which has been granted previously to the Employee.
(h) If the Employer does not continue the Employee's
employment upon expiration of the Initial Term, the only obligations of the
Employer hereunder shall be to pay the Employee in a cash lump sum an
amount equal to the Base Salary actually paid to the Employee for the prior
twelve (12) month period and any amounts payable under the Executive Bonus
Plan, as and when such amounts are due and payable under the terms of the
Executive Bonus Plan, and (5) to continue any and all such benefits and
insurance policies as required by Section 8 hereof.
(i) Notwithstanding anything contained in this Agreement to
the contrary, to the extent that the payments and benefits provided under
this Agreement or provided for the benefit of the Employee under any other
plan or agreement of or with the Employer (each such payment or benefit, a
"Payment," and such payments and benefits collectively, the "Payments"),
would be subject to the excise tax imposed under Section 4999 of the Code
or any interest or penalties with respect to such excise tax (such excise
tax, together with any such interest and penalties are hereinafter
collectively referred to as the "Excise Tax"), the Payments shall be
reduced if and to the extent necessary so that no Payment shall be subject
to the Excise Tax. The Employer shall reduce or eliminate the Payments by
first reducing or eliminating the payments due under Sections 10(b), 10(c)
or 10(e) hereof, then by reducing or eliminating any other amounts payable
in cash, and then by reducing or eliminating benefits which are not payable
in cash, in each case in reverse order beginning with payments or benefits
which are to be paid the farthest in time from the date of the
determination.
11. RESTRICTIVE COVENANTS
(a) During the Term of this Agreement and for a period of
two years following termination of this Agreement, the Employee (i) will
not violate or cause the Employer to violate the terms of any agreement,
including any franchise agreement, which the Employer is obligated under,
except with the express written consent of the duly empowered officer of
the Employer or pursuant to an order of a court of competent jurisdiction;
and (ii) divulge or use any confidential information the effect of which
would be injurious to the Employer without the prior written consent of a
duly empowered officer of the Employer. Employee shall have the right to
approve the provisions of any such franchise agreement which restricts
Employee's future employment or business interests. During the Term of
this Agreement and for a period of two years following termination of
Employee's employment hereunder, the Employee will not solicit or employ
any person, who was employed by the Employer within six months prior to the
termination of Employee's employment, in any business in which Employee has
a material interest, direct or indirect, as an officer, partner,
shareholder or beneficial owner. The preceding sentence shall not prohibit
the Employee from hiring (i) the individual who is the general counsel of
the Employer as of the date of the closing of the Securities Purchase
Agreement at any time, or (ii) any person whose employment is terminated
involuntarily by the Employer during the Term or at any time thereafter
provided that such hiring shall not occur until after the Employee's
termination of employment hereunder.
(b) During the Term of employment and for a period of two
(2) years after the termination of the Employee's employment hereunder,
Employee will not in the Area (as defined in Section 11(c) below) either
directly or indirectly engage in one or more of the following with any
Burger King franchisee: the acquisition, financing, providing of advice or
consulting services, or ownership of the operations of a franchised Burger
King restaurant, as an employee, officer, consultant, independent
contractor, partner or shareholder. This shall not prevent Employee from
engaging in any activity related to the acquisition or ownership of the
business of Burger King Corporation or any other business activity other
than that described in this Section 11(b).
(c) For purposes of this Agreement, Area shall mean the
continental United States, Puerto Rico and Canada.
(d) The parties hereto, recognizing that irreparable injury
will result to the Employer, its business and property in the event of the
Employee's breach of this Employee covenant and non-competition provision,
agree that in the event of any such breach by the Employee, the Employer
will be entitled, in addition to any other remedies and damages available,
to an injunction to restrain the violation hereof by the Employee, the
Employee's partners, agents, servants, employers, employees, and all
persons acting for or with the Employee. Employee represents and admits
that (i) in the event of termination of this Agreement, Employee's
experience and capabilities are such that Employee can obtain employment in
a business engaged in other lines and/or of a different nature than the
business of the Employer, and that the enforcement of a remedy by way of
injunction will not prevent the Employee from earning a livelihood, and
(ii) this Employee covenant and non-competition provision is being entered
into in connection with the Employee's sale of his ownership interest in
the Employer and in the absence of this provision the sale would not be
consummated.
12. INDEMNIFICATION
To the fullest extent permitted by Section 145 of the General
Corporation Law of Delaware, as the same may be amended and supplemented
("Section 145") and Article Ninth of the Employer's certificate of
incorporation, Employer shall indemnify Employee and hold him harmless from
and against any and all of the expenses, liabilities or other matters
referred to or covered in said section and certificate of incorporation
(collectively, "Liabilities") if any of such Liabilities are incurred or
suffered by Employee as a result of, arising out of or in connection with
his employment by the Employer provided however, that the Employee
acknowledges that he is not entitled to the indemnity referred to above
(either as set forth in the Employer's By-laws or in this Agreement), to
the extent a dispute arises between the Employer and the Employee with
respect to his conduct as an Employee, or any claim that may arise either
directly or indirectly with respect to the breach of any terms and
conditions of this Agreement. In addition to the indemnification, as
provided in Section 145, the Employer shall advance expenses, including
reasonable attorneys' fees, of Employee. The indemnification and
advancement of expenses provided for herein shall continue after Employee
has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of Employee.
13. BINDING EFFECT
This Agreement shall inure to the benefit of and be binding
upon the Employer and its successors. The Employer will require any
successor (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of its assets to expressly assume
and agree to perform this Agreement in the same manner and to the same
extent that the Employer would be required to perform it if no such
succession had taken place or with or into which the Employer may
consolidate or merge. Employee agrees that this Agreement is personal to
him and may not be assigned by him otherwise than by will or laws of
descent and distribution. This Agreement shall inure to the benefit of and
be enforceable by the Employee's legal representatives.
14. MISCELLANEOUS
(a) If any provision of this Agreement, or portion thereof,
shall be held invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall attach only to such
provision or portion thereof, and this Agreement shall be carried out as if
any such invalid or unenforceable provision or portion thereof were not
contained herein. In addition, any such invalid or unenforceable provision
or portion thereof shall be deemed, without further action on the part of
the parties hereto, modified, amended or limited to the extent necessary to
render the same valid and enforceable.
(b) This Agreement, and all of the rights and obligations
of the parties in connection with the employment relationship established
hereby shall be construed and enforced in accordance with the laws of New
York applicable to contracts made and fully to be performed therein, and
without giving effect to any rules of conflicts of law.
(c) All notices, requests, demands, and other
communications provided for hereunder shall be in writing and shall be
given or made when (i) delivered personally; (ii) three (3) business days
following mailing by first class postage prepaid, registered or certified
mail, return receipt requested, to the party to be notified at its or his
address set forth herein; or (iii) on the date sent by telecopier, if the
addressee has compatible receiving equipment and provided the transmittal
is made on a business day during the hours of 9:00 a.m. to 6:00 p.m. of the
receiving party and if sent at other times, on the immediately succeeding
business day, or (iv) on the first business day immediately succeeding
delivery to an express overnight carrier for the next business day
delivery.
(d) This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Each party
shall deliver such further instruments and take such further action as may
be reasonably requested by the other in order to carry out the provisions
and purposes of this Agreement. This Agreement represents the entire
understanding of the parties with reference to the subject matter hereof,
supersedes in its entirety the provisions of the Prior Employment
Agreement, and neither this Agreement nor any provisions hereof may be
modified, discharged or terminated except by an agreement in writing signed
by the party against whom the enforcement of any waiver, charge, discharge
or termination is sought. Any waiver by either party of a breach of any
provision of this Agreement must be in writing and no waiver of a
particular breach shall operate as or be construed as waiver of any
subsequent breach thereof.
IN WITNESSETH WHEREOF, the parties hereto have executed and have
caused this Amended and Restated Employment Agreement to be executed as of
April 3, 1996.
CARROLS CORPORATION
By: /S/ JOSEPH ZIRKMAN
Name: Joseph Zirkman
Title: Vice President
/S/ ALAN VITULI
ALAN VITULI