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AMENDED
AND RESTATED SEVERANCE COMPENSATION AGREEMENT dated as of
February 22, 2007, between O'Charley's Inc., a Tennessee
corporation (the "Company"), and Gregory L. Burns (the
"Executive").
The Company's Board of Directors has determined
that it is appropriate to reinforce and encourage the continued
attention and dedication of certain members of the Company's senior
management, including the Executive, to their assigned duties
without distraction in potentially disturbing circumstances arising
from the possibility of a change in control of the Company.
This Agreement sets forth the severance
compensation which the Company agrees it will pay to the Executive
if the Executive's employment with the Company terminates under one
of the circumstances described herein following a Change In Control
of the Company (as defined herein). This Agreement amends and
restates in its entirety that certain Severance Compensation
Agreement dated as of February 22, 2006 between the Company and the
Executive.
1.
Term. This Agreement shall terminate, except to the
extent that any obligation of the Company hereunder remains unpaid
as of such time, upon the earliest of (i) three years from the date
hereof if a Change in Control of the Company has not occurred prior
to such date; (ii) the termination of the Executive's
employment with the Company based on death, Disability (as defined
in Section 3(b)), Retirement (as defined in Section 3(c)) or Cause
(as defined in Section 3(d)) or by the Executive other than for
Good Reason (as defined in Section 3(e)); and (iii) twenty-four
months from the date of a Change in Control of the Company if the
Executive has not terminated his employment for Good Reason as of
such time.
2.
Change in Control. No compensation shall be payable
under this Agreement unless and until (a) there shall have been a
Change in Control of the Company while the Executive is still an
employee of the Company and (b) the Executive's employment by the
Company thereafter shall have been terminated in accordance with
Section 3. For purposes of this Agreement, a Change in Control
means the happening of any of the following:
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(i) 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
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(ii) 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
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(iii) 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.
3.
Termination Following Change in Control. (a) If a
Change in Control of the Company shall have occurred while the
Executive is still an employee of the Company, the Executive shall
be entitled to the compensation provided in Section 4 upon the
subsequent termination of the Executive's employment with the
Company by the Executive or by the Company within twenty-four
months of the Change in Control of the Company unless such
termination is as a result of (i) the Executive's death; (ii) the
Executive's Disability (as defined in Section (3)(b) below); (iii)
the Executive's Retirement (as defined in Section 3(c) below); (iv)
the Executive's termination by the Company for Cause (as defined in
Section 3(d) below); or (v) the Executive's decision to terminate
employment other than for Good Reason (as defined in Section 3(e)
below).
(b)
Disability. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall
have been absent from his duties with the Company on a full-time
basis for six months and within 30 days after written notice of
termination is thereafter given by the Company the Executive shall
not have returned to the full-time performance of the Executive's
duties, the Company may terminate this Agreement for
"Disability."
(c)
Retirement. The term "Retirement" as used in this
Agreement shall mean termination by the Company or the Executive of
the Executive's employment based on the Executive's having reached
age 65 or such other age as shall have been fixed in any
arrangement established with the Executive's consent with respect
to the Executive.
(d)
Cause. The Company may terminate the Executive's
employment for Cause. For purposes of this Agreement only, the
Company shall have "Cause" to terminate the Executive's employment
hereunder only on the basis of fraud, misappropriation or
embezzlement on the part of the Executive. Notwithstanding the
foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been
delivered to the 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 the
Executive) at a meeting of the Board called and held for the
purpose (after reasonable notice to the Executive and an
opportunity for the Executive, together with the Executive's
counsel, to be heard before the Board), finding that in the good
faith opinion of the Board the Executive was guilty of conduct set
forth in the second sentence of this Section 3(d) and specifying
the particulars thereof in detail.
(e)
Good Reason. The Executive may terminate the
Executive's employment for Good Reason at any time during the term
of this Agreement. For purposes of this Agreement
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"Good Reason" shall mean any of
the following (without the Executive's express written
consent):
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