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EXHIBIT 10.17
SEVERANCE COMPENSATION AGREEMENT dated as of February 11, 2004,
between
O'Charley's Inc., a Tennessee corporation
(the "Company"), and Steven J. Hislop
(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).
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) eighteen 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:
(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
(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 eighteen
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 if the 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 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
"Good Reason" shall mean any of the
following (without the Executive's express
written consent):
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(i) the
assignment to the Executive by the Company of
duties inconsistent with the Executive's position, duties,
responsibilities and status with the Company immediately prior to
a
Change in Control of the Company, or a change in the Executive's
titles
or offices as in effect immediately prior to a Change in Control of
the
Company, or any removal of the Executive from o
