As we
discussed, effective as of July 1, 2009 (the "Retirement Date"),
you will retire from OSI Restaurant Partners, LLC (the "Company")
and your employment with the Company and its subsidiaries and
affiliates will terminate. The purpose of this
letter agreement (the "Agreement") is to confirm the agreement
between you and the Company concerning your retirement from the
Company and the related severance arrangements, as
follows:
1.
Retirement; Duties Until Retirement Date . Effective as of
the Retirement Date, your employment with the Company will
terminate, and you will resign from all other positions,
offices and directorships that you hold with the
Company, Kangaroo Holdings, Inc. ("Holdings") or any of their
respective affiliates or subsidiaries. From the date first
written above until the Retirement Date, you shall continue to
serve as the Chief Operating Officer of the Company on the terms
contained in the Employment Agreement between you and the
Company dated June 14, 2007 (as amended, the "Employment
Agreement"). Your right to receive the benefits under this
Agreement is conditioned upon your continued compliance with
the covenants contained in the Employment Agreement and the
fulfillment of your duties thereunder. As of the Retirement
Date, the Employment Agreement shall terminate, except as expressly
provided in this Agreement.
2.
Final Wages and Business Expenses . In accordance with
Section 9(a) of the Employment Agreement, you will receive any
base salary earned by you during the current payroll period,
through the Retirement Date, to the extent not previously
paid. You will also be reimbursed for any unreimbursed
business expenses incurred under Section 7 of the Employment
Agreement, provided you submit appropriate substantiation and
documentation in accordance with Company policy. These
amounts will be paid to you within thirty (30) days of
the Retirement Date whether or not you accept this
Agreement.
3.
Severance Benefits . In consideration of your acceptance of
this Agreement, and subject to (i) your executing a release
agreement in the form attached hereto as Exhibit A (the "Release")
that satisfies the condition to severance benefits under the
Employment Agreement and (ii) your continued compliance with your
obligations under this Agreement and under Sections 10, 11, 13 and
27 of the Employment Agreement, the Company will provide you with
the following severance pay and benefits:
(a) in
satisfaction of its obligations under Section 9(b) of the
Employment Agreement, the Company will provide you with a severance
payment equal to One Million Six Hundred Sixty Eight Thousand
Five Hundred and Twenty Five Dollars ($1,668,525.00), which
represents the sum of (i) twelve (12) months of your base
salary at the rate in effect on the Retirement Date and (ii) the
average of the annual bonuses paid to you in respect to the prior
three years (which shall include, for these purposes, 50% of the
closing bonus paid to you in 2007) (the "Severance Payment"); such
Severance Payment to be paid to you in twelve (12) equal monthly
installments commencing on the date set forth in Section 5
below;
(b) if
you elect, as of the Retirement Date, under the Consolidated
Omnibus Budget Reconciliation Act ("COBRA") to continue to
participate in the Company's group medical, dental and vision
insurance plans, the Company shall reimburse you on a monthly basis
in arrears for the cost of your portion of the COBRA premiums
with respect to such coverage for eighteen (18) months following
the Retirement Date (such period, the "COBRA Period");
provided that you remain eligible for such participation
under applicable law and plan terms, and further
provided that the Company's obligations hereunder
shall terminate on the date that you become covered under another
employer's health, dental and visions plans (in which case you
shall notify the Company of such fact within five (5) days of so
becoming covered);
(c) if,
as of the end of the COBRA Period, you are not covered
under another employer's medical plan and you obtain personal
health insurance coverage at your own expense, the Company
shall reimburse you on a monthly basis in arrears for the cost
of your premiums under such coverage, up to a maximum of
$2,400 per month, subject to your providing the Company with
such appropriate documentation or substantiation as the Company may
require; the Company's obligations under this subsection (c)
shall terminate on the earlier of the date that (i) is the eighteen
month anniversary of the last day of the COBRA Period and (ii) you
become covered under another employer's health plan (in which
case you shall notify the Company of such fact within five (5)
days of so becoming covered);
(d) you
shall be entitled to an Outback Steakhouse "comp" card for
the remainder of your life, subject to the spending limits
that are in effect with respect to your existing "comp" card
as of May 31, 2009; it being understood that in no event shall any
amounts under such "comp" card that are not used in a calendar year
be carried over to any subsequent calendar year;
and
(e) in
lieu of any payment pursuant to the Company's bonus
program for fiscal year 2009, you will be entitled to receive
a pro-rata annual bonus in respect of the 2009 fiscal year, based
on the 2009 bonus plan approved by the Compensation Committee of
the Board of Directors of the Company, as amended on or about
May 5, 2009 and without giving effect to any further amendments
that may be made after the Retirement Date, such pro-rata
bonus to be determined by
4.
Stock Options; Restricted Stock .
(a) The
option to purchase Four Hundred Fifty Nine Thousand Two Hundred
Fourteen (459,214) shares of the common stock of Holdings at Ten
Dollars ($10.00) per share (the "Option"), that was granted to you
pursuant to that certain Option Agreement dated as of June 14, 2007
between you and Holdings (the "Option Agreement"), shall continue
to be governed by such Option Agreement, as amended effective as of
the date hereof, the terms of the Holdings 2007 Equity Incentive
Plan (the "Equity Plan") and the other agreements referenced
therein.
(b) The
One Million Two Hundred Thirty Four Thousand Five Hundred
(1,234,500) shares of restricted Holdings common stock (the
"Restricted Shares") that were granted to you pursuant to that
certain Restricted Stock Agreement dated as of June 14, 2007
by and among Holdings and you (as amended, the "Restricted Stock
Agreement") shall continue to be governed by the terms of the
Restricted Stock Agreement, as further amended effective June
14, 2009, and the other agreements referenced therein.
5.
Conditions to the Company's Obligations . Any obligation of
the Company, Holdings or any of their respective affiliates under
Sections 3 and 4 hereof is conditioned upon (i) your executing
this Agreement (which includes the release of claims included in
Section 13 below) and (ii) your executi
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