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EXHIBIT 10.67
SEVERANCE COMPENSATION AGREEMENT dated as of October 3, 2005,
between
O'Charley's Inc., a Tennessee corporation (the "Company"), and
Randall C. Harris
(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 become effective upon the commencement
of
Executive's employment with the Company. 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.
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
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"Good Reason" shall mean any of the following (without the
Executive's express
written consent):
(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 or any failure to reelect the Executive to any of
such
positions, excep
