EXHIBIT 10.1
FORM OF O’CHARLEY’S INC.
EXECUTIVE EMPLOYMENT AGREEMENT
(the “Agreement”)
O’CHARLEY’S INC.
(the “Company”)
and
__________________
(“Executive”)
November 6, 2007
BACKGROUND
| A. |
|
Executive is currently employed as the Company’s ___ and
is party to certain agreements with respect to Executive’s
employment, potential severance and change-in-control payments and
certain other terms, including Executive’s confidentiality
and noncompetition obligations to the Company. |
| B. |
|
The Company and Executive desire to incorporate the terms of
Executive’s employment in a single agreement that replaces
and supersedes any and all existing employment-related
agreements. |
ARTICLE I.
EMPLOYMENT, DUTIES AND TERM
1.1 Employment . Upon the
terms and condition set forth in this Agreement, the Company hereby
employs Executive as ___, and Executive accepts such
employment.
1.2 Duties . Executive shall
devote his full-time and best efforts to the Company and to
fulfilling the duties of his position, which shall include such
duties as may from time to time be assigned to him by the Company.
The Executive may devote reasonable time and attention to civic,
charitable, business and social organizations so long as such
activities do not interfere with the performance of
Executive’s responsibilities under this Agreement and
provided that Executive shall obtain the prior written approval of
the Company’s Chief Executive Officer prior to joining the
Board of Directors or other governing body of any such civic,
charitable, business or social organization in addition to any such
Board of Directors or governing body on which Executive serves as
of the date of this Agreement. Executive shall comply with the
Company’s policies and procedures to the extent they are not
inconsistent with this Agreement, in which case the provisions of
this Agreement shall prevail. The Executive agrees to serve without
any additional compensation as an officer and/or director of the
board of directors of any subsidiary of the Company as requested.
If the Executive’s employment terminates for any reason, the
Executive shall resign as an officer and director of the Company
and all of its subsidiaries.
1.3 Term . Subject to the
provisions of Articles III , IV and V herein,
this Agreement and Executive’s employment shall continue
until August 29, 2010 (the “Initial Term”) and
shall automatically renew for successive one year periods (each, a
“Renewal Term”) upon all terms, conditions and
obligations set forth herein unless either party shall provide
written notice to the other not less than ninety (90) days
prior to the expiration of the Initial Term or any Renewal Term, as
applicable. For purposes hereof, the Initial Term, together with
any Renewal Term, are hereinafter referred to as the
“Term.”
ARTICLE II.
COMPENSATION AND EXPENSES
2.1 Base Salary . For
services rendered under this Agreement during the Term, the Company
shall pay Executive a base salary at the rate in effect on the date
hereof. Executive’s base alary shall be reviewed annually by
the Compensation and Human Resources Committee of the Board (the
“Committee”) and may be increased in the sole
discretion of the Committee (such base salary, as it may be
increased from time to time during the Term, is hereinafter
referred to as the “Base Salary”).
2.2 Bonus and Incentive . The
Executive shall be eligible to participate in such bonus and
incentive plans during the Term as the Committee may determine
appropriate.
2.3 Business Expenses . The
Company shall, consistent with its policies in effect from time to
time, bear all ordinary and necessary business expenses incurred by
Executive in performing Executive’s duties as an employee of
the Company, provided , that Executive incurs and accounts
promptly for such expenses to the Company in the manner prescribed
by the Company.
2.4 Benefits . During the
Term, the Company shall provide Executive with those benefits
provided generally to members of senior management, including a car
allowance in an amount at least equal to the amount as in effect on
the date hereof.
ARTICLE III.
SEVERANCE PRIOR TO CHANGE IN CONTROL
3.1 Severance . This
Article III shall not apply to termination following a
Change in Control (as hereinafter defined), which is governed
solely by Article IV .
3.2 Severance Payment .
(a) It
is understood and agreed that if Executive’s employment with
the Company should be terminated at any time prior to the
expiration of the Term as a result of a Termination Without Cause
(defined below) or a Termination With Good Reason (defined below),
and if Executive is not then or thereafter in material breach of
this Agreement, and upon the execution and delivery to the Company
by Executive of an agreement, in a form presented by the Company
and accepted by Executive, which acceptance shall not be
unreasonably withheld or delayed, releasing all claims which
Executive may have against the Company (other than claims for
indemnification pursuant to Section 6.7 hereunder and
claims under this Agreement), Executive shall receive, in full and
complete settlement of any claims for compensation which Executive
may have, and in lieu of any severance pay under any policy of the
Company or otherwise, the following:
(i)
continued monthly payments, in accordance with the Company’s
regular payroll practices, for a period of twelve (12) months
after the date of termination equal to the sum of
(1) one-twelfth (1/12) of Executive’s Base Salary, and
(2) one-twelfth (1/12) of Executive’s target annual
bonus for the fiscal year in which the date of termination
occurs;
(ii)
any payments and benefits which Executive or Executive’s
spouse, dependents, beneficiaries or estate would have been
entitled to receive pursuant to any employee benefit plan or
program of the Company during the twelve (12)-month period
following Executive’s termination had Executive remained an
employee during that period, with such benefits provided to
Executive at no less than the same coverage level and at no more of
a cost to Executive as in effect as of the date of
Executive’s termination subject to such reduction in coverage
or increases in cost as shall become in effect for senior executive
employees of the Company generally, provided ,
however , that such continued payments and benefits shall
terminate on the date or dates Executive receives substantially
similar coverage and benefits,
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without waiting period or pre-existing condition limitations, under
the plans and programs of a subsequent employer (such coverage and
benefits to be determined on a coverage-by-coverage or
benefit-by-benefit basis).
(b) As
used in this Article III , “Termination Without
Cause” means any termination of Executive’s employment
by the Company other than a Termination With Cause (defined
below).
(c) As
used in this Article III , “Termination With
Cause” means termination by the Company of Executive’s
employment at any time after the Company believes in good faith it
has actual knowledge of the occurrence of any of the following
events: gross neglect of duty, material breach of this Agreement, a
material act of dishonesty or disloyalty, the inability by
Executive to discharge Executive’s material duties due to
alcohol or drug addiction, or gross misconduct inimical to the best
interests of the Company; provided , however , that
termination of employment solely due to unsatisfactory job
performance shall not be considered a Termination With Cause; and,
provided further , that a “Termination With
Cause” shall not be deemed existing unless and until the
Company has delivered to Executive a copy of a resolution duly
adopted by the Company’s Board of Directors at a meeting of
the Board duly called (after reasonable (but in no event less than
seven (7) days) notice to Executive and an opportunity for
Executive, together with Executive’s counsel, to be heard
before the Board), finding that in the good faith opinion of the
Board, Executive had engaged in the conduct set forth above and
specifying the particulars thereof in reasonable detail.
(d) As
used in this Article III , “Termination with Good
Reason” means Executive’s termination of employment at
any time within the earlier of two (2) years after Executive
has actual knowledge of the occurrence or the expiration of the
Term, without Executive’s written consent, of one of the
following events: (i) a material reduction in
Executive’s Base Salary or a material reduction in the health
and welfare insurance, retirement and other benefits available to
Executive as of the commencement of employment, except for
reductions in such benefits as shall become in effect for senior
executive employees of the Company generally; (ii) the
reassignment of Executive to a position resulting in Executive not
being the Company’s ___ and resulting in a material
diminution in Executive’s authority, duties or
responsibilities, or a reporting relationship other than to the
Chief Executive Officer, President or Chief Operating Officer of
the Company; or (iii) the relocation of Executive’s
principal office to a location more than fifty (50) miles from
___; provided that Executive shall have notified the Company of the
existence of a condition described in items (i), (ii) or
(iii), within ninety (90) days of Executive’s actual
knowledge of the initial existence of the condition, and the
Company shall have failed to remedy the condition within thirty
(30) days of receiving such notice. For the avoidance of
doubt, subsequent occurrences of these events shall start new time
periods described in this paragraph.
(e) In
the event Executive voluntarily terminates his employment for any
reason other than as a result of a Termination with Good Reason or
following a Change in Control (as defined in Article IV
) prior to the third anniversary of the date of Executive’s
initial hire date, Executive agrees to reimburse the Company for
any and all amounts reimbursed by the Company or paid by the
Company in respect of Executive’s relocation to Nashville,
Tennessee.
(f) The
amounts payable to Executive under this Article III are
not eligible earnings under any pension, savings, deferred
compensation, bonus, incentive, supplemental retirement benefit or
other benefit plan of the Company.
ARTICLE IV.
CHANGE IN CONTROL
4.1 Change In Control . No
compensation shall be payable under this Article IV
unless and until (a) there shall have been a Change in Control
of the Company during the Term and (b) Executive’s
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employment by the Company thereafter shall have been terminated in
accordance with Section 4.2 . For purposes of this
Agreement, a Change in Control means the happening of any of the
following:
(a) any
person or entity, including a “group” as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, other
than the Company, a wholly-owned subsidiary thereof, any employee
benefit plan of the Company or any of its Subsidiaries becomes the
beneficial owner of the Company’s securities having 30% or
more of the combined voting power of the then outstanding
securities of the Company that may be cast for the election of
directors of the Company (other than as a result of an issuance of
securities initiated by the Company in the ordinary course of
business); or
(b) as
the result of, or in connection with, any cash tender or exchange
offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing
transactions, less than a majority of the combined voting power of
the then outstanding securities of the Company or any successor
corporation or entity entitled to vote generally in the election of
the directors of the Company or such other corporation or entity
after such transaction are held in the aggregate by the holders of
the Company’s securities entitled to vote generally in the
election of directors of the Company immediately prior to such
transaction; or
(c) during
any period of two consecutive years, individuals who at the
beginning of any such period constitute the Board cease for any
reason to constitute at least a majority thereof, unless the
election, or the nomination for election by the Company’s
shareholders, of each director of the Company first elected during
such period was approved by a vote of at least two-thirds of the
directors of the Company then still in office who were directors of
the Company at the beginning of any such period.
4.2 Termination . If a Change
in Control of the Company shall have occurred during the Term,
Executive shall be entitled to the compensation provided in
Section 4.3 upon the subsequent termination of
Executive’s employment with the Company by Executive or by
the Company within eighteen months of the Change in Control of the
Company unless such termination is as a result of
(i) Executive’s death; (ii) Termination by Reason
of Disability (as defined in Section 4.2(a) );
(iii) Termination by Reason of Retirement (as defined in
Section 4.2(b) ; (iv) Termination With Cause (as
defined in Section 4.2(c) ); or (v) termination by
the Executive other than a Termination for Good Reason (as defined
in Section 4.2(d) ).
(a) As
used in this Article IV , “Termination by Reason
of Disability” means a termination of the Executive by the
Company by reason of Executive’s inability, as determined by
the Board, to perform his regular duties and responsibilities due
to physical or mental illness which has lasted for six months and
within 30 days after written notice of termination is
thereafter given by the Company, Executive shall not have returned
to the full-time performance of Executive’s duties.
(b) As
used in this Article IV , “Termination by Reason
of Retirement” means a termination by the Company or
Executive of Executive’s employment based on
Executive’s having reached age 65 or such other age as shall
have been fixed in any arrangement established with
Executive’s consent with respect to Executive.
(c) As
used in this Article IV , “Termination With
Cause” means the termination of the Executive’s
employment on the basis of fraud, misappropriation or embezzlement
on the part of Executive. Notwithstanding the foregoing, the
termination of Executive’s employment shall not be deemed to
have been a Termination With Cause unless and until there shall
have been delivered to Executive a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of
the membership of the Company’s Board of Directors (excluding
Executive if Executive is then a member of the Board of Directors)
at a meeting of the Board called and held for the purpose (after
reasonable notice to Executive and an opportunity for Executive,
together with Executive’s counsel, to be heard before
the
4
Board),
finding that in the good faith opinion of the Board Executive was
guilty of conduct set forth in the first sentence of this
Section 4(c) and specifying the particulars thereof in
detail.
(d) As
used in this Article IV , “Termination for Good
Reason” means a termination by the Executive upon the
occurrence of any of the following (without Executive’s
express written consent):
(i)
the assignment to Executive by the Company of duties that
constitute a material diminution of Executive’s position,
duties, responsibilities and status with the Company immediately
prior to a Change in Control of the Company, or a change in
Executive’s titles or offices as in effect immediately prior
to a Change in Control of the Company, or any removal of Executive
from or any failure to reelect Executive to any of such positions,
except in connection with a Termination by Reason of Disability, a
Termination by Reason of Retirement, a Termination With Cause, a
termination by the Executive other than a Termination for Good
Reason or as a result of Executive’s death (each as defined
in this Article IV);
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