Richard Renninger
Exhibit 10.27
OSI RESTAURANT PARTNERS,
LLC
Amended and
Restated
Officer Employment
Agreement
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (the “Agreement”) is made and entered into
this 27 th
day of March 2009, to be effective
for all purposes as of February 5, 2008, by and among RICHARD
RENNINGER, whose address is 511 S. Orleans Ave., Tampa, Florida
33606 (hereinafter referred to as “Employee”) and OSI
RESTAURANT PARTNERS, LLC, a Delaware limited liability company,
formerly known as OUTBACK STEAKHOUSE, INC., having its principal
office at 2202 N. West Shore Boulevard, 5 th 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 is engaged in the business of owning and operating, through
its subsidiaries and their affiliates, various restaurant concepts
utilizing restaurant operating systems and trademarks owned by or
licensed to the Company; and
B. WHEREAS, the
Company and the Employee are parties to that certain Officer
Employment Agreement dated effective June 13, 2005 (the
“Original Agreement”), pursuant to which, the Company
employed Employee as Senior Vice President of Real Estate and
Development; and
C. WHEREAS, the
Company desires, on the terms and conditions stated herein, to
amend and restate the Original Agreement as a result of
Employee’s promotion to Executive Vice President and Chief
Development Officer of the Company; and
D. WHEREAS, the
Employee desires, on the terms and conditions stated herein, to be
employed by the Company as Executive Vice President and Chief
Development Officer.
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 Company hereby employs the
Employee, and the Employee hereby accepts employment with the
Company as Executive Vice President and Chief Development Officer
of the Company for a term expiring on June 13, 2015 (“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 Company that the Employee (i) is not subject to any
written nonsolicitation or noncompetition agreement affecting the
Employee’s employment with 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 Company (other than any prior
agreement with the Company), and (iii) has brought to the Company
no trade secrets, confidential business information, documents, or
other personal property of a prior employer.
OSI Restaurant
Partners, LLC
EA-Officer (OSI) with renewal
2005a
3 Duties . As Executive Vice President and Chief
Development Officer 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 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 Company. The Employee shall be responsible for
directly reporting to the President or Chief Executive Officer of
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, (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,
Section 12 or Section 14 hereof, or conflict with any
published policy of the Company or its affiliates, including but
not limited to the insider trading policy of the Company or its
affiliates.
Notwithstanding the foregoing,
Employee shall also be permitted to participate in customary civic
and professional activities that will not, in the opinion of the
Employer, materially affect Employee’s performance of his
duties hereunder.
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 Company, also serve as an officer of any subsidiary
or affiliate of the Company as 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 Company 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
Company.
4 Compensation .
(a)
Base Salary
. During the Term of Employment, the
Employee shall be entitled to an annual base salary equal to the
annual salary of Employee on the effective date hereof, payable in
equal biweekly installments by the Company, to be reviewed annually
by the Company.
(b)
Bonus . During the Term of Employment, the Employee
shall be entitled to discretionary bonuses pursuant to a bonus plan
as may be provided by the Company to similar employees of the
Company.
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 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
OSI Restaurant
Partners, LLC
EA-Officer (OSI) with renewal
2005a
insurance, medical benefits, etc. , if
any, as may be provided by the Company to similar employees of the
Company. Such benefits shall be provided in accordance with any
applicable policy, program or plan provisions. Any
taxable welfare benefits provided to the Employee pursuant to this
Section 6 that are not ‘disability pay’ or
‘death benefits’ within the meaning of Treasury
Regulations Section 1.409A-1(a)(5) (collectively, the
‘Applicable Benefits’) shall be subject to the
following requirements in order to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the
"Code"). The amount of any Applicable Benefits provided
during one taxable year shall not affect the amount of the
Applicable Benefits provided in any other taxable year, except that
with respect to any Applicable Benefits that consist of the
reimbursement of expenses referred to in Code Section 105(b), a
limitation may be imposed on the amount of such reimbursements as
described in Treasury Regulations Section
1.409A-3(i)(iv)(B). To the extent that any Applicable
Benefits consist of the reimbursement of eligible expenses, such
reimbursement must be made on or before the last day of the
calendar year following the calendar year in which the expense was
incurred, and Company shall not be obligated to reimburse any
expense for which the Employee fails to submit an invoice or other
documented reimbursement request at least thirty (30) business days
before the end of the calendar year next following the calendar
year in which the expense for any such reimbursement was
incurred. Further, no Applicable Benefits may be
liquidated or exchanged for another benefit.
7.
Expenses . Subject to approval by the Chief Financial
Officer of the Company and compliance with the Company’s
policies, the Employee may incur reasonable expenses on behalf of
and in furtherance of the business of the Company. Upon approval of
such expenses by the Chief Financial Officer, the Company 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. If any
reimbursements under this provision or under Section 6 are
taxable to the Employee, such reimbursements shall be paid on or
before the end of the calendar year following the calendar year in
which the reimbursable expense was incurred, and the Company shall
not be obligated to pay any such reimbursement amount for which
Employee fails to submit an invoice or other documented
reimbursement request at least thirty (30) business days before the
end of the calendar year next following the calendar year in which
the expense was incurred. Such expenses, under this
provision or under Section 6, shall be reimbursable only to
the extent they were incurred during the term of the
Agreement. In addition, the amount of such
reimbursements under this provision or under Section 6 that
the Company is obligated to pay in any given calendar year shall
not affect the amount the Company is obligated to pay in any other
calendar year. Further, Employee may not liquidate or
exchange the right to reimbursement of such expenses, under this
provision or under Section 6 , for any other
benefits.
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 Company, in its sole discretion;
provided, however, that the Term of Employment shall not be
terminated pursuant to this subparagraph (i) unless the
Company 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
OSI Restaurant
Partners, LLC
EA-Officer (OSI) with renewal
2005a
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 Company, in its sole
discretion, within such thirty (30) day period (or if during such
thirty (30) day period the Company determines that the Employee is
not making reasonable, good faith efforts to cure the deficiencies
to the satisfaction of the Company), the Company shall have the
right to immediately terminate the Term of Employment. The
provisions of this subparagraph (i) may be invoked by the
Company 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 Company from issuing any
subsequent Notices of Deficiency; or
(ii) Any
intentional dishonesty by the Employee in the Employee’s
dealings with the Company, 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 Company or its affiliates
(material published policies include, but are not limited to, the
Company’s discrimination and harassment policy, responsible
alcohol policy and insider trading policy); or
(d) At the election of
the Company, upon the sale of a majority ownership interest in the
Company or substantially all of the assets of the Company;
or
(e) At the election of
the Company, upon the determination by the Company to cease the
Company’s business operations.
(f) Termination of
Employment for all purposes under this Agreement will be determined
to have occurred in accordance with the ‘separation from
service’ requirements of Code Section 409A and the Treasury
Regulations and other guidance issued thereunder, and based on
whether the facts and circumstances indicate that Company and
Employee reasonably anticipated that no further services would be
performed after a certain date or that the level of bona fide
services Employee would perform after such date (as an employee or
as an independent contractor) would permanently decrease to no more
than 20 percent of the average level of bona fide services
performed over the immediately preceding 36-month period (or actual
period of service, if less).
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.
(a) During Term
. During the Employee’s employment with the Company, 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
OSI Restaurant
Partners, LLC
EA-Officer (OSI) with renewal
2005a
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
