Exhibit 10.5
McCORMICK &
SCHMICK’S SEAFOOD RESTAURANTS, INC.
EMPLOYMENT
AGREEMENT
|
|
|
|
Date:
|
|
November 13,
2008
|
|
|
|
William T. Freeman
|
|
Executive
|
|
29085 Oak Creek Lane, Apartment 707
|
|
|
|
Agoura Hills, CA 91301
|
|
|
|
|
|
McCormick & Schmick’s Seafood
Restaurants, Inc.
|
|
Company
|
|
720 SW Washington Street, Suite 550
|
|
|
|
Portland, OR 97205
|
|
|
In consideration of the mutual
covenants contained in this Agreement, and other good and valuable
consideration, the Company and Executive agree as
follows.
1. Term; Duties
. This Agreement governs the terms
and conditions of Executive’s employment through
December 31, 2011. This Agreement has been approved by the
Compensation Committee of the Company’s Board of Directors
(the “Compensation Committee”). Executive shall advance
the best interest of the Company at all times during his employment
and shall diligently perform the duties reasonably assigned to him
from time to time. Executive shall devote his full business time
and efforts to the performance of his duties for the Company,
provided that Executive may serve on the board of directors of
other companies so long as such service is in accordance with the
Company’s policies governing such activities and does not
give rise to potential conflicts of interest as determined by the
Board of Directors or the Nominating and Corporate Governance
Committee of the Board of Directors. Executive may retain his
position on the board of managers of B&B Restaurant Ventures,
LLC until December 31, 2009, provided that such position does
not affect Executive’s diligent performance of his duties for
the Company. Executive will report to the Board of Directors.
Executive may be elected to the Board of Directors of the Company.
Executive will receive no additional compensation for service as a
director. Executive shall, upon his election as a director, execute
a resignation as a director of the Company in the form attached as
Exhibit A . Upon request, Executive shall provide the
Company with additional written evidence of such
resignation.
1
2. Employment At-Will
. As of the date Executive commences
full time employment with the Company (the “Effective
Date”), the Company shall employ Executive as Chief Executive
Officer of the Company on the terms and conditions set forth in
this Agreement. Executive will serve as Chief Executive Officer of
the Company at the pleasure of the Board of Directors.
Executive’s employment is at will and may be terminated at
any time, for any reason or no reason, upon notice by either the
Company or Executive, subject to the obligations of the Company and
Executive as provided in this Agreement.
3. Severance and Noncompetition Agreement .
The Company and the Executive have entered into a Severance and
Noncompetition Agreement dated as of the date of this Agreement
which is attached hereto as Exhibit B (the “Severance
Agreement”).
4. Annual Salary and
Bonus .
(a) Base Salary
. Beginning on the Effective Date,
Executive’s base salary (the “Base Salary”) shall
be at the annual rate of $450,000. Base Salary shall be payable in
installments on regular Company paydays, subject to withholding for
taxes and other proper deductions. Base Salary for any partial
period of employment shall be prorated. Executive’s
performance and the amount of the Base Salary shall be reviewed
annually in connection with the Company’s normal compensation
review and bonus cycle for executive officers, and the Base Salary
may be increased from time to time in the sole discretion of the
Compensation Committee.
(b) Annual Performance Bonus for
Fiscal Year Ending December 27, 2009 . Executive’s target cash bonus for the
fiscal year ending December 26, 2009 shall be 50% of the Base
Salary. The actual amount of Executive’s bonus for this
period shall be determined by the Compensation Committee and may be
more or less than the target amount; provided however that for
fiscal year 2009, the cash bonus shall be no less than 25% of Base
Salary. Bonus payment for performance during fiscal year 2009 will
be on the basis of a review and discussion by the Compensation
Committee, and will include consideration of a variety of financial
and organizational objectives and the overall performance of the
Company, as well as the achievement of personal goals agreed with
the Compensation Committee. The bonus provided for in this
Section 4(b) shall be payable to Executive on a date selected
by the Company in the first two quarters of fiscal year 2010, and
is subject to withholding for taxes and other proper
deductions.
2
(c) Annual Performance Bonus for
Fiscal Years 2010 and 2011 . The Compensation Committee will establish a
bonus program for fiscal years 2010 and 2011 for Executive in its
sole discretion, but in consultation with Executive.
5. Equity Compensation and Other
Benefits .
(a) Option Grants
. Executive shall be granted, on the
Effective Date, an option under the Company’s 2004 Stock
Incentive Plan to purchase 250,000 shares of common stock of the
Company. The per share exercise price of the option is the market
price on the close of business on the Effective Date. The option
shall vest as follows: 83,333 shares on the first and second
anniversary of the grant date and 83,334 shares on the third
anniversary of the grant date. The terms of the option shall be as
otherwise provided in the Incentive Stock Option Agreement attached
as Exhibit C . Executive acknowledges that only a portion of
the options may qualify as “incentive stock options”
under Section 422 of the Internal Revenue Code of 1986, as
amended.
(b) Benefits
. Executive shall be entitled to
participate in the Company’s employee benefit plans,
insurance, executive medical coverage, sick leave, holidays,
vacation, auto allowance and such other benefits as the Company
from time to time generally provides to its most senior officers.
In 2009, Executive shall receive three weeks vacation
time.
(c) Moving Expenses; Temporary
Housing . Executive shall
be reimbursed for reasonable moving expenses incurred in relocating
to Portland, Oregon, and shall be reimbursed for temporary housing
in Portland, Oregon, in an amount not to exceed an aggregate of
$35,000 ($15,000 for shipping, $15,000 for interim living expense
and rent for Los Angeles apartment and $5,000 in house-hunting
trips).
6. Confidentiality . Executive agrees that
subsequent to Executive’s period of employment with the
Company, Executive will not at any time communicate or disclose to
any unauthorized person, without the written consent of the
Company, any confidential information of the Company or any
subsidiary, including any confidential information concerning their
business, affairs, products, suppliers or customers; it being
understood, however, that the obligations of this Section 6
shall not apply to the extent that such matters (a) are
disclosed in circumstances where Executive is legally required to
do so or (b) become generally known to and available for use
by the public otherwise than by Executive’s wrongful act or
omission. In addition to other remedies that may be available to
the Company, the Company shall have no obligation to pay any
benefits to Executive pursuant to the Severance Agreement, and
Executive shall repay to the Company all benefits paid under the
Severance Agreement, if Executive violates this
Section 6.
3
7. Attorneys’
Fees . Each party shall
bear his or its own costs and attorneys’ fees which have been
or may be incurred in connection with the negotiation of this
Agreement.
8. Miscellaneous
. No provision of this Agreement may
be modified, waived or discharged unless such modification, waiver
or discharge is agreed to in a writing signed by Executive and the
Chairman of the Compensation Committee. No waiver by either party
hereto at any time of any breach by the other party hereto of, or
of compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject
matter hereof have been made by either party which are not
expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Oregon.
9. Validity
. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
10. Related Agreements
. To the extent that any provision
of any other agreement between the Company or any of its
subsidiaries and Executive shall limit, qualify or be inconsistent
with any provision of this Agreement, then for purposes of this
Agreement, while the same shall remain in force, the provision of
this Agreement shall control and such provision of such other
agreement shall be deemed to have been superseded, and to be of no
force or effect, as if such other agreement had been formally
amended to the extent necessary to accomplish such
purpose.
4
11. Counterparts
. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an
original, but all of which together will constitute one and the
same instrument.
|
|
|
|
|
|
|
|
McCORMICK
& SCHMICK’S SEAFOOD RESTAURANTS, INC.
|
|
|
|
Executive:
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
Name:
|
|
David
Pittaway
|
|
|
|
William T.
Freeman
|
|
Title:
|
|
Chairman of
Compensation Committee of the Board of Directors
|
|
|
|
|
5
Exhibit B
EXECUTIVE SEVERANCE AND
NONCOMPETITION AGREEMENT
|
|
|
|
William T. Freeman
|
|
Executive
|
|
29085 Oak Creek Lane, Apartment 707
|
|
|
|
Agoura Hills, CA 91301
|
|
|
|
|
|
McCormick & Schmick’s Seafood
Restaurants, Inc.
|
|
Company
|
|
720 SW Washington Street, Suite 550
|
|
|
|
Portland, OR 97205
|
|
|
The Company considers the attraction
and retention of highly qualified management personnel to be
essential to promoting the best interests of the Company and its
shareholders. In this connection, the Company recognizes that, as
is the case of many publicly held corporations, the possibility of
a change of control exists and this possibility, and the
uncertainty and questions which it may raise among management, may
result in the departure or distraction of management personnel to
the detriment of the Company and its shareholders. To induce
Executive to remain employed by the Company in the face of
uncertainties about the long-term strategies of the Company and
possible change of control of the Company and their potential
impact on Executive’s position with the Company, this
Agreement, which has been approved by the Board of Directors of the
Company, sets forth the severance benefits that the Company will
provide to Executive if Executive’s employment by the Company
is terminated in the circumstances described in this
Agreement.
1. Employment Relationship .
Executive will be employed by the Company as Chief Executive
Officer effective upon Executive’s first day of full time
employment with the Company. Executive and the Company acknowledge
that either party may terminate this employment relationship at any
time and for any or no reason, subject to the obligation of the
Company to provide the severance benefits specified in this
Agreement in accordance with its terms.
2. Release of Claims . In
consideration for and as a condition precedent to receiving the
severance benefits outlined in this Agreement, Executive
shall
1
execute a Release of Claims in the form attached
as Exhibit A (“Release of Claims”) no later than 30
days after a Termination of Executive’s Employment (as
defined in Section 8.1).
3. Compensation Upon
Termination .
3.1 In the event of a Termination of
Executive’s Employment (as defined in Section 8.1) at
any time within the first three months of Executive’s
employment other than for Cause (as defined in Section 8.2),
and contingent upon Executive’s compliance with
Section 10