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Exhibit (o)
MAX & ERMA'S RESTAURANTS, INC.
SEVERANCE AGREEMENT
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IN THE EVENT OF CHANGE IN CONTROL
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This Agreement is made this 10th day of January, 2000, by and between
__________ ("Executive") and MAX & ERMA'S RESTAURANTS, INC., a Delaware
corporation with its principal office at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx,
its affiliates, subsidiaries, successors, and assigns (the "Company").
RECITALS
A. The Company competes in the casual dining segment of the restaurant
industry by operating Max & Erma's Restaurants that offer a variety of high
quality food in a casual, comfortable, and fun atmosphere and with a uniquely
personable style.
B. The Executive is a principal officer of the Company and an integral
part of its management.
C. The Company considers the Executive's continued services to be in
the best interest of the Company and desires, through this Agreement, to assure
the Executive's continued services on behalf of the Company on an objective and
impartial basis and without distraction or conflict of interest in the event of
an attempt to obtain control of the Company.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings unless otherwise expressly provided in this
Agreement:
(a) Change in Control. A "Change in Control" shall be deemed
to have occurred if and when, after the date hereof, (i) any "person"
(as that term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on the date
hereof), including any "group" as such term is used in Section 13(d)(3)
of the Exchange Act on the date hereof, shall acquire (or disclose the
previous acquisition of) beneficial ownership (as that term is defined
in Section 13(d) of the Exchange Act and the rules thereunder on the
date hereof) of shares of the outstanding stock of any class or classes
of the Company which results in such person or group possessing more
than 50% of the total voting power of the Company's outstanding voting
securities ordinarily having the right to vote for the election of
directors of the Company; or (ii) as the result of, or in connection
with, any tender or exchange offer, merger or other business
combination, or contested election, or any combination of the foregoing
transactions (a "Transaction"), the owners of the voting shares of the
Company outstanding immediately prior to such Transaction own less than
a majority of the voting
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shares of the Company after the Transaction; or (iii) during any period
of two consecutive years during the term of this Agreement, individuals
who at the beginning of such period constitute the Board of Directors
of the Company (or who take office following the approval of a majority
of the directors then in office who were directors at the beginning of
the period) cease for any reason to constitute at least one-half
thereof, unless the election of each director who was not a director at
the beginning of such period has been approved in advance by directors
of the Company representing at least one-half of the directors then in
office who were directors at the beginning of the period; or (iv) the
sale, exchange, transfer, or other disposition of all or substantially
all of the assets of the Company (a "Sale Transaction").
Notwithstanding the foregoing, a "Change in Control" shall not
be deemed to have occurred for purposes of this Agreement (a) if the
Executive, alone or as part of any "group" as such term is used in
Section 13(d)(3) of the Exchange Act on the date hereof, shall acquire
(or disclose the previous acquisition thereof) beneficial ownership (as
that term is defined in Section 13(d) on the Exchange Act and the rules
thereunder on the date hereof) of shares of the outstanding stock of
any class or classes of the Company that results in the Executive or
the Executive as part of any "group" possessing more than 50% of the
total voting power of the Company's outstanding voting securities
ordinarily having the right to vote for the election of directors of
the Company; (b) upon the occurrence of any Transaction, Sale
Transaction, consolidation, or reorganization involving the Company and
the Executive, alone or with other officers of the Company, or any
entity in which the Executive (alone or with other officers) has,
directly or indirectly, any equity or ownership interest, except where
such entity is a publicly traded company and the Executive does not own
more than a 1% interest in such entity prior to the Transaction, Sale
Transaction, consolidation, or reorganization; (c) in a transaction
otherwise commonly referred to as a "management leveraged buyout"; or
(d) in an acquisition of stock of the Company by employee benefit plans
sponsored by the Company.
(b) Date of Termination. "Date of Termination" shall mean (i)
if the Executive's employment is terminated for Disability, 30 days
after a Notice of Termination is given (provided that the Executive
shall not have returned to the performance of his duties on a full-time
basis during such 30-day period), (ii) if the Executive's employment is
terminated for Cause, the date specified in the Notice of Termination,
(iii) if the Executive's employment is terminated by death, the date of
death, and (iv) if the Executive's employment is terminated for any
other reason, the date on which a Notice of Termination is given, or,
if the Company terminates the Executive's employment without giving a
Notice of Termination, the date on which such termination is effective.
(c) Disability. The Executive's employment shall be deemed to
have been terminated by "Disability" if, as a result of his incapacity
due to physical or mental illness, he shall have been absent from his
duties with the Company on a full-time basis for the entire period of
six consecutive months, and within 30 days after written notice of
termination is given (which may occur before or after the end of such
six-month period) he shall not have returned to the full-time
performance of his duties.
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(d) Effective Period. The "Effective Period" means the
12-month period following any Change in Control (even if such 12-month
period shall extend beyond the term of this Agreement or any extension
thereof).
(e) Notice of Termination. A "Notice of Termination" shall
mean a notice which shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment.
(f) Termination for Cause. The Company shall only have "Cause"
to terminate the Executive's employment hereunder upon the occurrence
of one or more of the following grounds:
(i) Commission of a crime which is a felony, fraud,
or embezzlement, or any misdemeanor involving an act of moral
turpitude or committed in connection with the Executive's
employment and which causes the Company a substantial
detriment or embarrassment;
(ii) Engagement in activities or conduct clearly
injurious to the best interests or reputation of the Company;
(iii) The willful and continued refusal or failure to
perform reasonably assigned duties and responsibilities in a
competent or satisfactory manner as determined by the Company;
(iv) The willful and continued insubordination of the
Executive;
(v) The willful and continued violation of any of the
material terms and conditions of this Agreement or any other
written agreement or agreements that the Executive may from
time to time have with the Company; or
(vi) The willful and continued violation of any of
the Company's rules of conduct or behavior, such as may be
provided in any employee handbook or as the Company may
promulgate from time to time.
Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Cause under this Agreement 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 Board at a meeting called and held for such
purposes, after notice to the Executive and an opportunity for the
Executive, together with the Executive's counsel (if the Executive
chooses to have counsel present at such meeting), to be heard before
the Board, finding that, in the good faith opinion of the Board, the
Executive had committed an act constituting Cause as defined in this
Agreement and specifying the particulars of the act constituting Cause
in detail. Nothing in this Agreement will limit the right of the
Executive or the Executive's beneficiaries to contest the validity or
propriety of any such determination.
(g) Termination For Good Reason. "Good Reason" shall mean,
unless the Executive shall have consented in writing thereto,
termination by the Executive of his employment following a Change in
Control because of any of the following:
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(i) A reduction in Executive's title, duties,
responsibilities, or status, as compared to such title,
duties, responsibilities, or status immediately prior to the
Change in Control or as the same may be increased after the
Change in Control;
(ii) The assignment to the Executive of duties
inconsistent with the Executive's office on the date of the
Change in Control or as the same may be increased after the
Change in Control;
(iii) A reduction by the Company in the Executive's
base salary as in effect immediately prior to the Change in
Control or as the same may be increased after the Change in
Control, or a reduction by the Company after a Change in
Control in the Executive's total compensation (including
bonus) so that the Executive's total cash compensation in a
given calendar year is less than 90% of Executive's total
compensation for the prior calendar year;
(iv) A requirement that the Executive relocate
anywhere not mutually acceptable to the Executive and the
Company or the imposition on the Executive of business travel
obligations substantially greater than his business travel
obligations during the year prior to the Change in Control;
(v) The relocation of the Company's principal
executive offices to a location outside the greater Columbus,
Ohio area;
(vi) The failure by the Company to continue in effect
any material fringe benefit or compensation plan, retirement
plan, life insurance plan, health and accident plan, or
disability plan in which the executive is participating at the
time of a Change in Control (or plans providing the Executive
with substantially similar benefits), the taking of any action
by the Company which would adversely affect the Executive's
participation in or materially reduce his benefits under any
of such plans or deprive him of any material fringe benefit
enjoyed by him at the time of the Change in Control, or the
failure by the Company to provide him with the number of paid
vacation days to which he is then entitled on the basis of
years of service with the Company in accordance with the
normal vacation policy then in effect immediately prior to the
Change in Control;
(vii) Any breach of this Agreement on the part of the
Company; or
(viii) Failure of any successor to assume all
obligations under this Agreement.
(h) Termination for Retirement. Termination by the Company of
the Executive's employment based on "Retirement" shall mean termination
in accordance with the Corporation's normal retirement policy
applicable to its salaried employees as in effect immediately prior to
the Change in Control or in accordance with any other retirement
arrangement established with the Executive's consent with respect to
the Executive.
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2. PREVIOUS AGREEMENT TERMINATED. Any prior severance agreement in the
event of a change in control between the Company and the Executive is hereby
terminated.
3. TERM. Unless sooner terminated as herein provided, the term of this
Agreement shall commence on the date hereof and shall continue until the third
anniversary of the Commencement Date (the "Termination Date"); provided,
however, that commencing on the Termination Date and on each anniversary date
thereof the term of this Agreement shall automatically be extended for one
additional year beyond the then existing term unless, not later than one hundred
twenty (120) days immediately preceding the Termination Date of the then
existing term, the Company shall have given the Executive notice that it wishes
to terminate this Agreement in which case the Agreement shall terminate at the
end of the then existing term. The Company may not give such notice at any time
while it has knowledge that any third person has taken steps or announced an
intention to take steps reasonably calculated to effect a Change in Control.
Notwithstanding the above, if a "Change in Control" (as defined herein) of the
Company occurs during the term of this Agreement, the term of this Agreement
will be extended for twelve (12) months beyond the end of the month in which any
such Change in Control occurs. It is understood that no amounts or benefits
shall be payable under this Agreement unless (i) there shall have been a Change
in Control during the term of this Agreement and (ii) the Executive's employment
is terminated at any time during the Effective Period as provided in Section 5
hereof. It is further understood that the Company may terminate the Executive's
employment at any time after a Change in Control, subject to the Company
providing, if required to do so in accordance with the terms hereof, the
severance payments and benefits hereinafter specified, which payments and
benefits shall only be available if a Change in Control has occurred prior to
such termination. Prior to a Change in Control, this Agreement shall terminate
immediately if the Executive's employment with the Company is terminated for any
reason, and Executive shall be entitled to no payments or benefits hereunder.
4. TERMINATION FOLLOWING A CHANGE IN CONTROL. Any termination of
Executive's employment by the Company for Cause, Disability, or otherwise or by
the Executive for Good Reason, which occurs at any time during the Effective
Period, shall be communicated by written Notice of Termination to the other
party.
5. COMPENSATION UPON TERMINATION FOLLOWING A CHANGE IN CONTROL. The
Executive shall be entitled to the severance benefits provided in Section 5
hereof if his employment is terminated within the Effective Period following a
Change in Control of the Company (even if such Effective Period extends beyond
the term of this Agreement or any extension thereof) unless his termination is
(i) because of his death or Retirement, (ii) by the Company for Cause or
Disability, or (iii) by the Executive other than for Good Reason.
(a) For Cause. If, at any time during the Effective Period,
the Executive's employment shall be terminated for Cause, the Company
shall pay his full base salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given, and the
Company shall have no further obligations to the Executive under this
Agreement.
(b) Death, Disability, or Retirement. If, at any time during
the Effective Period, the Executive's employment is terminated by
reason of the Executive's death, Disability, or Retirement, the Company
shall pay to the Executive or his legal representative his full
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base salary through the Date of Termination, and the Company shall have
no further obligation to the Executive or his legal representative
under this Agreement.
(c) For Good Reason or without Cause. If, at any time during
the Effective Period, the Executive's employment is terminated by the
Company for any reason other than Cause, death, Disability, or
Retirement; or is terminated by the Executive for Good Reason, at any
time during the Effective Period, then:
(i) The Company shall pay to the Executive, not later
than 30 days following the Date of Termination, the
Executive's accrued but unpaid base salary through the Date of
Termination plus compensation for any current and carried-over
unused vacation days in accordance with the applicable
personnel policy and the unpaid balance of the current year's
premiums under any split dollar life insurance policy on the
life of the Executive held by the Company.
(ii) The Company shall pay to the Executive, not
later than 30 days following the Date of Termination, an
amount in cash equal to the product of (x) the average annual
bonus paid to the Executive for the last three full fiscal
years ending prior to the Date of Termination or, if the
Executive has been employed by the Company for less than three
full fiscal years prior to the Date of Termination, the
average annual bonus paid to the Executive for the entire
period of the Executive's employment prior to the Date of
Termination and (y) the fraction obtained by dividing (A) the
number of days between the Date of Termination and the last
day of the last full fiscal year ending prior to such date and
(B) 365.
(iii) All outstanding stock options issued to the
Executive shall become 100% vested and thereafter exercisable
in accordance with such governing stock option plans and
agreements, and the ownership of the unvested portion of the
Company's cash value of any split dollar life insurance policy
shall become 100% vested in the Executive.
(iv) In lieu of any further payments of salary to the
Executive after the Date of Termination, the Company shall pay
to the Executive, not later than thirty (30) days following
the Date of Termination and notwithstanding any dispute
between the Executive and Company as to the payment to the
Executive of any other amounts under this Agreement or
otherwise, a lump sum cash severance payment (the "Severance
Payment") equal to 1.5 times the average annual compensation
which was payable to the Executive by the Company (or any
other company (an "Affiliate") affiliated with the Company
within the meaning of Section 1504 of the Internal Revenue
Code of 1986, as amended (the "Code")) and includable in the
Executive's gross income for federal income tax purposes for
the five taxable years ending prior to the date on which a
Change in Control of the Company occurred (or such portion of
such period during which the Executive performed personal
services for the Company or an Affiliate). Compensation
payable to the Executive by the Company or an Affiliate shall
include every type and form of compensation includable in the
Executive's gross income for federal income tax purposes in
respect of the Executive's employment by the Company or an
Affiliate.
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(d) Excess Parachute Payments. If any portion of the aggregate
payments under Section 5 hereof which are considered "parachute
payments" within the meaning of Section 280G(b)(2) of the Internal
Revenue Code of 1986, as amended (the "Code"), shall be determined by
the Corporation's independent auditors to be nondeductible to the
Company, then the aggregate present value of all of the amounts payable
to the Executive under Section 5(c) hereof shall be reduced to the
maximum amount which would cause all of the payments under Section 5(c)
to be deductible and in such event the executive shall have the option,
but not the obligation, to designate or select those kinds of payments
which shall be reduced and the order of such reductions, but failure of
the Executive to make such selections within a period of 30 days
following notice of the determination that a reduction is necessary
will result in a reduction of all such payments, pro rata. If the
Executive disagrees with the determination of the reduced amount by the
Company's auditors, he may contest that determination by giving notice
of such contest within 30 days of learning of the determination and may
use an accountant of his choice in connection with such contest. The
Company shall pay all of the Executive's costs in connection with such
contest if the ultimate determination by the two accountants (that of
the Company and that of the Executive) in consultation with each other,
or by a third accountant jointly chosen by the two first-named
accountants in the event the first two cannot agree, represents a
lesser reduction in the amounts payable under Section 5(c) hereof than
the Company's independent auditors established in the first instance.
Otherwise, the Executive shall pay his own and any additional costs
incurred by the Company in contesting such determination. If there is a
final determination by the Internal Revenue Service or a court of
competent jurisdiction that the Company overpaid amounts under Section
280G of the Code, the amount of the overpayment shall be treated as a
loan to the Executive and shall be repaid immediately, together with
interest on such amount at the prime rate of interest at Huntington
National Bank, Columbus, Ohio, or any successor thereto, in effect from
time to time. If the Internal Revenue Service or a court of competent
jurisdiction finally determines, or if the Code or regulations
thereunder shall change such that the Corporation underpaid the
Executive under Section 280G of the Code, the Corporation shall pay the
difference to the Executive with interest as specified above.
(e) Avoidance of Penalty Taxes. This Section 5 shall be
interpreted so as to avoid the imposition of excise taxes on the
Executive under Section 4999 of the Code, and the Executive may in his
sole discretion elect to reduce any payments he may be eligible to
receive under this Agreement to prevent the imposition of such excise
taxes.
(f) Other Rights not Affected. The Executive's right to
receive payment under this Agreement shall not decrease the amount of,
or otherwise adversely affect, any other benefits payable to the
Executive under any plan, agreement, or arrangement relating to
employee benefits provided by the Company.
(g) No Duty to Mitigate. The Executive shall not be required
to mitigate the amount of any payment provided for in this Section 5 by
seeking other employment or otherwise, nor shall the amount of any
payment provided for in this Section 5 be reduced by any compensation
earned by the Executive as the result of employment by another employer
or by reason of the Executive's receipt of or right to receive any
retirement or other benefits after the Date of Termination of
employment or otherwise.
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6. SUCCESSORS; BINDING AGREEMENT
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Company and its
subsidiaries to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be
required to perform it if no succession had taken place. Failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the
Executive to compensation in the same amount and on the same terms as
he would be entitled hereunder if he terminated his employment for Good
Reason during the Effective Period, except that for purposes of
implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in
this Agreement, "Company" shall mean the Company as defined above and
any successor to its business and/or assets as aforesaid which executes
and delivers the agreement provided for in this Section 6 or which
otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law. Nothing contained in this Section 6
shall be construed to modify or affect the definition of a "Change in
Control" contained in Section 1 hereof.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees,
and legatees.
7. ARBITRATION. Any dispute or controversy arising out of or relating
to this Agreement, or any breach thereof, shall be settled by arbitration in
accordance with the rules of the American Arbitration Association. The award of
the arbitrator shall be final, conclusive, and nonappealable and judgment upon
such award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitrator shall mean an arbitrator qualified to serve
in accordance with the rules of the American Arbitration Association and one who
is approved by both the Company and the Executive. In the absence of such
approval, each party shall designate a person qualified to serve as an
arbitrator in accordance with the rules of the American Arbitration Association
and the two persons so designated shall select the arbitrator from among those
persons qualified to serve in accordance with the rules of the American
Arbitration Association. The arbitration shall be held in Columbus, Ohio or
other such place as may be agreed upon at the time by the parities to the
arbitration.
8. ENFORCEMENT OF AGREEMENT. The Company is aware that upon the
occurrence of a Change in Control, the Board of Directors or a shareholder of
the Company may then cause or attempt to cause the Company to refuse to comply
with its obligations under this Agreement, or may cause or attempt to cause the
Company to institute, or may institute arbitration or litigation seeking to have
this Agreement declared unenforceable, or may take or attempt to take other
action to deny the Executive the benefits intended under this Agreement. In
these circumstances, the purpose of this Agreement could be frustrated.
Accordingly, if following a Change in Control it should appear to the Executive
that the Company has failed to comply with any of its obligations under Section
5(c) of this Agreement or in the event that the Company or any other person
takes any action to declare Section 5(c) of this Agreement void or
unenforceable, or institutes any arbitration, litigation, or other legal action
designed to deny, diminish or to recover from the Executive the benefits
entitled to be provided to him under Section 5(c), and that the Executive has
complied with all his obligations under this Agreement, the Company authorizes
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the Executive to retain counsel of his choice, at the expense of the Company as
provided in this Section, to represent him in connection with the initiation or
defense of any pre-suit settlement negotiations, arbitration, litigation, or
other legal action, whether such action is by or against the Company or any
Director, officer, shareholder, or other person affiliated with the Company, in
any jurisdiction. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company consents to the
Executive entering into an attorney-client relationship with such counsel, and
in that connection the Company and the Executive agree that a confidential
relationship shall exist between the Executive and such counsel, except with
respect to any fee and expense invoices generated by such counsel. The
reasonable fees and expenses of counsel selected by the Executive as hereinabove
provided shall be paid or reimbursed to the Executive by the Company on a
regular, periodic basis upon presentation by the Executive of a statement or
statements prepared by such counsel in accordance with its customary practices,
up to a maximum of 25% of the amount due to the Executive under Section 5(c).
Any legal expenses incurred by the Company by reason of any dispute between the
parties as to enforceability of Section 5(c) or the terms contained in Section
5(c), notwithstanding the outcome of any such dispute, shall be the sole
responsibility of the Company, and the Company shall not take any action to seek
reimbursement from the Executive for such expenses.
9. NOTICES. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed in the
case of the Executive, to:
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and in the case of the Company, to the principal executive offices of the
Company, provided that all notices to the Company shall be directed to the
attention of the Company's Chief Executive Officer with copies to the Secretary
of the Company, or to such other addresses as either party may have furnished to
the other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
10. NO WAIVER. No provisions of this Agreement may be modified, waived,
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the executive and a duly authorized officer of the Company. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time
11. SAVING. If any provision of this Agreement is later found to be
completely or partially unenforceable, the remaining part of that provision of
any other provision of this Agreement shall still be valid and shall not in any
way be affected by the finding. Moreover, if any provision is for any reason
held to be unreasonably broad as to time, duration, geographical scope, activity
or subject, such provision shall be interpreted and enforced by limiting and
reducing it to preserve enforceability to the maximum extent permitted by law.
12. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Ohio without reference to its choice of
law rules.
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13. FINAL AGREEMENT. This Agreement replaces any existing agreement
between the Executive and the Company relating to the same subject matter and
may be modified only by an agreement in writing signed by the parties.
MAX & ERMA'S RESTAURANTS, INC.
By:
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Its:
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EXECUTIVE
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