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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: MCCORMICK & SCHMICKS SEAFOOD RESTAURANTS INC. | B&B Restaurant Ventures, LLC You are currently viewing:
This Employee Retention Agreement involves

MCCORMICK & SCHMICKS SEAFOOD RESTAURANTS INC. | B&B Restaurant Ventures, LLC

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Title: EMPLOYMENT AGREEMENT
Governing Law: Oregon     Date: 3/10/2009
Industry: Restaurants     Sector: Services

EMPLOYMENT AGREEMENT, Parties: mccormick & schmicks seafood restaurants inc. , b&b restaurant ventures  llc
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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.

 

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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.

 

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(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.

 

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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.

 

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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:

 

/s/ DAVID PITTAWAY

 

 

/s/ WILLIAM T. FREEMAN

Name:

 

David Pittaway

 

 

William T. Freeman

Title:

 

Chairman of Compensation Committee of the Board of Directors

 

 

 

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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

 

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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


 
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