Contract
EXHIBIT
10 (o)
[CBRL GROUP,
INC. LOGO]
Post Office Box 787
Lebanon, Tennessee 37088
Phone 000-000-0000
Fax 000-000-0000
xxxxxxxxx.xxx
April 23,
2008
Xxxxxxx
X. Xxxxxx
000 Xxxx
Xxxx Xxxx.
Lebanon,
TN 37087
Dear
Xxxx:
The Board of Directors of the CBRL
Group, Inc. recognizes the contribution that you have made to CBRL Group, Inc.
or one of its direct or indirect subsidiaries (collectively, the "Company") and
wishes to ensure your continuing commitment to the Company and its business
operations. Accordingly, in exchange for your continuing commitment
to the Company, and your energetic focus on continually improving operations,
the Company promises you the following benefits if your employment with the
Company is terminated in certain circumstances:
1. DEFINITIONS. As
used in this Agreement, the following terms have the following meanings which
are equally applicable to both the singular and plural forms of the terms
defined:
1.1 "Cause"
means any one of the following:
| (a) | personal dishonesty; | |
| (b) | willful misconduct; | |
| (c) | breach of fiduciary duty; or | |
| (d) | conviction of any felony or crime involving moral turpitude. |
1.2 "Change
in Control" means: (a) that after the date of this Agreement, a person
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of the Company's then
outstanding voting securities, unless that acquisition was approved by a vote of
at least 2/3 of the directors in office immediately prior to the acquisition;
(b) that during any period of 2 consecutive years following the date of this
Agreement, individuals who at the beginning of the period constitute members of
the Board of Directors of the Company cease for any reason to constitute a
majority of the Board unless the election, or the nomination for election by the
Company's shareholders, of each new director was approved by a vote of at least
2/3 of the directors then still in office who were directors at the
Cracker Barrel Old Country Store™
beginning
of the 2-year period; (c) a merger, consolidation or reorganization of the
Company (but this provision does not apply to a recapitalization or similar
financial restructuring which does not involve a material change in ownership of
equity of the Company and which does not result in a change in membership of the
Board of Directors); or (d) a sale of all or substantially all of the Company’s
assets.
1.3 "Change in
Control Period"
means a 2-year year period beginning the day after a Change in Control
occurs.
1.4 "Change in
Duties or Compensation" means any one of: (a) a
material change in your duties and responsibilities for the Company (without
your consent) from those duties and responsibilities for the Company in effect
at the time a Change in Control occurs, which change results in the assignment
of duties and responsibilities inferior to your duties and responsibilities at
the time such Change in Control occurs (it being understood and acknowledged by
you that a Change in Control that results in two persons of which you are one
having similar or sharing duties and responsibilities shall not be a material
change in your duties and responsibilities); (b) a reduction in your salary or a
material change in benefits (excluding discretionary bonuses), from the salary
and benefits in effect at the time a Change in Control occurs; or (c) a change
in the location of your work assignment from your location at the time a Change
in Control occurs to any other city or geographical location that is located
further than 50 miles from that location.
2. TERMINATION
OF EMPLOYMENT; SEVERANCE. Your immediate
supervisor or the Company's Board of Directors may terminate your employment,
with or without cause, at any time by giving you written notice of your
termination, such termination of employment to be effective on the date
specified in the notice. You also may terminate your employment with
the Company at any time. The effective date of termination (the
"Effective Date") shall be the last day of your employment with the Company, as
specified in a notice by you, or if you are terminated by the Company, the date
that is specified by the Company in its notice to you. The following
subsections set forth your rights to severance in the event of the termination
of your employment in certain circumstances by either the Company or you.
Section 5 also sets forth certain restrictions on your activities if your
employment with the Company is terminated, whether by the Company or
you. That section shall survive any termination of this Agreement or
your employment with the Company.
2.1 Termination
by the Company for Cause. If you are
terminated for Cause, the Company shall have no further obligation to you, and
your participation in all of the Company's benefit plans and programs shall
cease as of the Effective Date. In the event of a termination for
Cause, you shall not be entitled to receive severance benefits described in
Section 3.
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2.2 Termination
by the Company Without Cause Other Than During a Change in Control
Period. If your
employment with the Company is terminated by the Company without Cause at a time
other than during a Change in Control Period, you shall be entitled to only
those severance benefits provided by the Company's severance policy or policies
then in effect. You shall not be entitled to receive benefits
pursuant to Section 3 of this Agreement.
2.3 Termination
by the Company Without Cause During a Change in Control Period. If your
employment with the Company is terminated by the Company without Cause during a
Change in Control Period, you shall be entitled to receive Benefits pursuant to
Section 3. A termination within 90 days prior to a Change in Control which
occurs solely in order to make you ineligible for the benefits of this Agreement
shall be considered a termination without Cause during a Change in Control
Period.
2.4 Termination
By You For Change in Duties or Compensation During a Change in Control
Period. If during a
Change in Control Period there occurs a Change in Duties or Compensation you may
terminate your employment with the Company at any time within 30 days after the
occurrence of the Change in Duties or Compensation, by giving to the Company not
less than 120 nor more than 180 days notice of termination. During
the notice period that you continue to work, any reduction in your Compensation
will be restored. At the option of the Company, following receipt of
this notice, it may: (a) change or cure, within 15 days, the condition that you
claim has caused the Change in Duties or Compensation, in which case, your
rights to terminate your employment with the Company pursuant to this Section
2.4 shall cease (unless there occurs thereafter another Change in Duties or
Compensation) and you shall continue in the employment of the Company
notwithstanding the notice that you have given; (b) allow you to continue your
employment through the date that you have specified in your notice; or (c)
immediately terminate your employment pursuant to Section 2.3. If you
terminate your employment with the Company pursuant to this Section 2.4, you
shall be entitled to receive Benefits pursuant to Section 3. Your
failure to provide the notice required by this Section 2.4 shall result in you
having no right to receive any further compensation from the Company except for
any base salary or vacation earned but not paid, plus any bonus earned and
accrued by the Company through the Effective Date.
3. SEVERANCE
BENEFITS. If your
employment with the Company is terminated as described in Section 2.3 or 2.4,
you shall be entitled to the benefits specified in subsections 3.1, 3.2, and 3.3
(the "Benefits") for the period of time set forth in the applicable
section.
3.1 Salary
Payment or Continuance. You will be paid
a single lump sum payment in an amount equal to 2.99 times the average of your
annual base salary and any bonus payments for the 3 years immediately preceding
the Effective Date. The determination of the amount of this payment
shall be made by the Company's actuaries and benefit consultants and, absent
manifest error, shall be final, binding and conclusive upon you and the
Company.
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3.2 Continuation
of Benefits. During the 2
years following the Effective Date (the “Severance Period”) that results in
benefits under this Article 3, you shall continue to receive the medical,
prescription, dental, and group life insurance benefits at the levels to which
you were entitled on the day preceding the Effective Date, or reasonably
equivalent benefits, to the extent continuation is not prohibited or limited by
applicable law. In no event shall substitute plans, practices,
policies and programs provide you with benefits which are less favorable, in the
aggregate, than the most favorable of those plans, practices, policies and
programs in effect for you at any time during the 120-day period immediately
preceding the Effective Date. However, if you become reemployed with another
employer and are eligible to receive medical or other welfare benefits under
another employer-provided plan, Company payments for these medical and other
welfare benefits shall cease.
4. EFFECT OF
TERMINATION ON STOCK OPTIONS AND RESTRICTED STOCK. In the event of any
termination of your employment, all stock options and restricted stock held by
you that are vested prior to the Effective Date shall be owned or exercisable in
accordance with their terms; all stock options held by you that are not vested
prior to the Effective Date shall lapse and be void; however, if your employment
with the Company is terminated as described in Sections 2.3 or 2.4, then, if
your option or restricted stock grants provide for immediate vesting in the
event of a Change in Control, the terms of your option or restricted stock
agreement shall control. If your option or restricted stock agreement
does not provide for immediate vesting, you shall receive, within 30
days after the Effective Date, a lump sum cash distribution equal to: (a) the
number of shares of the Company's ordinary shares that are subject to options or
restricted stock grants held by you that are not vested as of the Effective Date
multiplied by (b) the difference between: (i) the closing price of a share of
the Company's ordinary shares on the NASDAQ National Market System as reported
by The Wall Street Journal as of the day prior to the Effective Date (or, if the
market is closed on that date, on the last preceding date on which the market
was open for trading), and (ii) the applicable exercise prices or stock grant
values of those non-vested shares.
5. DISCLOSURE
OF INFORMATION. You recognize and
acknowledge that, as a result of your employment by the Company, you have or
will become familiar with and acquire knowledge of confidential information and
certain trade secrets that are valuable, special, and unique assets of the
Company. You agree that all that confidential information and trade
secrets are the property of the Company. Therefore, you agree that,
for and during your employment with the Company and continuing following the
termination of your employment for any reason, all confidential information and
trade secrets shall be considered to be proprietary to the Company and kept as
the private records of the Company and will not be divulged to any firm,
individual, or institution, or used to the detriment of the
Company. The parties agree that nothing in this Section 6 shall be
construed as prohibiting the Company from pursuing any remedies available to it
for any breach or threatened breach of this Section 6, including, without
limitation, the recovery of damages from you or any person or entity acting in
concert with you.
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6. GENERAL
PROVISIONS.
6.1 Other
Plans. Nothing in this
Agreement shall affect your rights during your employment to receive increases
in compensation, responsibilities or duties or to participate in and receive
benefits from any pension plan, benefit plan or profit sharing plans except
plans which specifically address benefits of the type addressed in Sections 3
and 4 of this Agreement.
6.2 Death
During Severance Period. If you die during the
Severance Period, any Benefits remaining to be paid to you shall be paid to the
beneficiary designated by you to receive those Benefits (or in the absence of
designation, to your surviving spouse or next of kin).
6.3 Notices. Any notices to be given
under this Agreement may be effected by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the
addresses appearing on the first page of this Agreement (to the attention of the
Secretary in the case of notices to the Company), but each party may change the
delivery address by written notice in accordance with this Section
7.3. Notices delivered personally shall be deemed communicated as of
actual receipt; mailed notices shall be deemed communicated as of the second day
following deposit in the United States Mail.
6.4 Entire
Agreement. This
Agreement supersedes all previous oral or written agreements, understandings or
arrangements between the Company and you regarding a termination of your
employment with the Company or a change in your status, scope or authority and
the salary, benefits or other compensation that you receive from the Company as
a result of the termination of your employment with the Company (the "Subject
Matter"), all of which are wholly terminated and canceled. This
Agreement contains all of the covenants and agreements between the parties with
respect to the Subject Matter. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have
been made with respect to the Subject Matter by any party, or anyone acting on
behalf of any party, which are not embodied in this Agreement. Any
subsequent agreement relating to the Subject Matter or any modification of this
Agreement will be effective only if it is in writing signed by the party against
whom enforcement of the modification is sought.
6.5 Partial
Invalidity. If
any provision in this Agreement is held by a court of competent jurisdiction to
be invalid, void, or unenforceable, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in any
way.
6.6 Governing
Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Tennessee, and it shall be enforced or challenged only in the courts of the
State of Tennessee.
6.7 Waiver of
Jury Trial. The Company and
you expressly waive any right to a trial by jury in any action or proceeding to
enforce or defend any rights under this Agreement, and agree that any such
action or proceeding shall be tried before a court and not a jury. You
irrevocably
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waive, to
the fullest extent permitted by law, any objection that you may have now or
hereafter to the specified venue of any such action or proceeding and any claim
that any such action or proceeding has been brought in an inconvenient
forum.
6.8 Miscellaneous. Failure or delay of either
party to insist upon compliance with any provision of this Agreement will not
operate as and is not to be construed to be a waiver or amendment of the
provision or the right of the aggrieved party to insist upon compliance with the
provision or to take remedial steps to recover damages or other relief for
noncompliance. Any express waiver of any provision of this Agreement
will not operate, and is not to be construed, as a waiver of any subsequent
breach, irrespective of whether occurring under similar or dissimilar
circumstances. You may not assign any of your rights under this
Agreement. The rights and obligations of the Company under this
Agreement shall benefit and bind the successors and assigns of the
Company. The Company agrees that if it assigns this Agreement to any
successor company, it will ensure that its terms are continued.
6.9 Certain Additional Payments
by the Company.
| a. | The Company will pay you an amount (the “Additional Amount”) equal to the excise tax under the United States Internal Revenue Code of 1986, as |
amended
(the “Code”), if any, incurred by you by reason of the payments under this
Agreement and any other plan, agreement or understanding between you and the
Company or its parent, subsidiaries or affiliates (collectively, “Separation
Payments”) constituting excess parachute payments under Section 280G of the Code
(or any successor provision). In addition, the Company will pay an
amount equal to all excise taxes and federal, state and local income taxes
incurred by you with respect to receipt of the Additional Amount. All
determinations required to be made under this Section 6.9 including whether an
Additional Amount is required and the amount of any Additional Amount, will be
made by the independent auditors engaged by the Company immediately prior to the
Change in Control (the “Accounting Firm”), which will provide detailed
supporting calculations to the Company and you. In computing taxes,
the Accounting Firm will use the highest marginal federal, state and local
income tax rates applicable to you and will assume the full deductibility of
state and local income taxes for purposes of computing federal income tax
liability, unless you demonstrate that you will not in fact be entitled to such
a deduction for the year of payment.
| b. | The Additional Amount, computed assuming that all of the Separation Payments constitute excess parachute payments as defined in Section 280G of the |
Code (or any
successor provision), will be paid to you at the time that the payments made
pursuant to Section 3.1 is made unless the Company, prior to the Severance
Period, provides you with an opinion of the Accounting Firm that you will not
incur an excise tax on part or all of the Separation Payments. That
opinion will be based upon the applicable regulations under Sections 280G and
4999 of the Code (or any successor provisions) or substantial authority within
the meaning of Section 6662 of the Code. If that opinion applies only
to part of the Separation Payments, the
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Company
will pay you the Additional Amount with respect to the part of the Separation
Payments not covered by the opinion.
| c. | The amount of the Additional Amount and the assumptions to be utilized in arriving at the determination, shall be made by the Company’s Accounting |
Firm,
whose decision shall be final and binding upon both you and the
Company. You must notify the Company in writing no later than 30 days
after you are informed of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the Additional
Amount. You must also cooperate fully with the Company and give the
Company any information reasonably requested relating to the claim, and take all
action in connection with contesting the claim as the Company reasonably
requests in writing from time to time.
If all of the terms and conditions in
this Agreement are agreed to by you, please signify your agreement by executing
the enclosed duplicate of this letter and returning it to us. At the date of
your return, this letter shall constitute a fully enforceable Agreement between
us.
| CBRL GROUP, INC. |
| By: | /s/Xxxxxxx X. Xxxxxxxxx |
| Xxxxxxx X. Xxxxxxxxx | |
| Chairman, President and Chief Executive Officer |
The
foregoing is fully agreed to and accepted by:
Company
Employee's Signature: /s/Xxxxxxx X.
Xxxxxx
Please
Print or Type Name: Xxxxxxx X. Xxxxxx
Please
Print or Type Title: Executive Vice President and Chief Operating
Officer
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