Buffalo Wild Wings 2005 Annual Report Download - page 164

Before the filing of any arbitration, the parties agree to mediate any
dispute that does not include injunctive relief or specific performance
actions covered below, provided that the party seeking mediation must
notify the other party of its intent to mediate prior to the termination of
this Agreement. Mediation will be conducted by a mediator or mediation
program agreed to by the parties. Persons authorized to settle the dispute
must attend any mediation session. The parties agree to participate in the
mediation proceedings in good faith with the intention of resolving the
dispute if at all possible within 30 days of the notice from the party
seeking to initiate the mediation procedures. If not resolved within 30
days, the parties are free to pursue arbitration. Mediation is a compromise
negotiation for purposes of the federal and state rules of evidence, and
the entire process is confidential.
Nothing in this Agreement bars our right to obtain injunctive relief
against threatened conduct that will cause us loss or damages, under the
usual equity rules, including the applicable rules for obtaining
restraining orders and preliminary injunctions. Furthermore, we and our
affiliates have the right to commence a civil action against you or take
other appropriate action for the following reasons: to collect sums of
money due to us; to compel your compliance with trademark standards and
requirements to protect the goodwill of the Trademarks; to compel you to
compile and submit required reports to us; or to permit evaluations or
audits authorized by this Agreement.
The prevailing party in any action or proceeding arising under, out
of, in connection with, or in relation to this Agreement, any lease or
sublease for the Restaurant or Authorized Location, or the business will be
entitled to recover its reasonable attorneys' fees and costs.
N. During the term of this Agreement, neither we nor you may employ
or seek to employ, directly or indirectly, any person who is at the time or
was at any time during the prior 6 months employed in any type of
managerial position by the other party or any of its subsidiaries or
affiliates, or by any franchisee in the system. In the event that you
violate this provision, we will have the right to terminate this Agreement
without opportunity to cure pursuant to subparagraph 7.B. In addition, any
party who violates this provision agrees to pay as fair and reasonable
liquidated damages (but not as a penalty) an amount equal to 2 times the
annual compensation that the person being hired away was perceiving at the
time the violating party offers her/him employment. You agree that this
amount is for the damages that the non−violating party will suffer for the
loss of the person hired away by the other party, including the costs of
finding, hiring and training a new employee and for the loss of the
services and experience of the employee hired away, and that it would be
difficult to calculate with certainty the amount of damages that the
non−violating party will incur. Notwithstanding the foregoing, if a court
determines that this liquidated damages payment is unenforceable, then the
non−violating party may pursue all other available remedies, including
consequential damages. This subparagraph will not be violated if (i) at the
time we or you employ or seek to employ the person, the former employer has
given its written consent or (ii) we employ or seek to employ the person in
connection with the transfer of the Restaurant(s) to us or any of our
affiliates. The parties acknowledge and agree that any franchisee from whom
an employee was hired by you in violation of this subparagraph shall be a
third−party beneficiary of this provision, but only to the extent that they
may seek compensation from you.
O. We will designate the "Effective Date" of this Agreement in the
space provided on the cover page. If no Effective Date is designated on the
cover page, the Effective Date is the date when we sign this Agreement.
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