Tom Vogel Logan’s Roadhouse, Inc. Nashville, Tennessee 37204 Re: Employee Retention Agreement Dear Tom:
March
16,
2006
Xxx
Xxxxx
Xxxxx’x
Roadhouse, Inc.
0000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxxx 00000
Dear
Xxx:
The
Board
of Directors of Xxxxx’x Roadhouse, Inc. or its successor (the “Company”)
recognizes the contribution that you have made to 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 other than the Company’s
parent corporation CBRL Group, Inc. (“CBRL”) or its subsidiaries becomes the
beneficial owner, directly or indirectly, of securities of the Company
representing 51% or more of the combined voting power of the Company's then
outstanding voting securities; (b) a merger or consolidation of the Company
with
a person other than CBRL or its subsidiaries; or (c) a sale of all or
substantially all of the Company’s assets other than a sale-leaseback
transaction after which the Company continues its operations under lease
obligations in substantially all of the affected locations. Notwithstanding
the
foregoing, a transaction (e.g.,
a
spin-off to the shareholders of CBRL, or a public offering of the Company’s
securities) that results in the Company becoming subject to the reporting
provisions of Section 13 or 15(d) of the Securities Exchange Act of 1934 shall
not
be
deemed to constitute a “Change in Control” for purposes of this
Agreement.
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1.3 "Change
in Control Period"
means a
one-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 target bonus expressed as a percentage of 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.
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.
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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 and 3.2
(the
"Benefits") for the period of time set forth in the applicable section.
3.1 Lump
Sum Payment.
You will
be paid a single lump sum payment in an amount equal to 2.99 times the average
of the sum of your annual base salary and any bonus payments received by you
during each of the Company’s 2004, 2005 and 2006 fiscal years. If the Effective
Date occurs before you have received any 2006 bonus earned, your compensation
for fiscal year 2006 shall be deemed to be the sum of base pay actually received
through the Effective Date, plus the portion of any bonus earned through the
Effective Date. (e.g., if the Effective Date is May 31, 2006, the fiscal year
2006 compensation will be 10-month salary received, plus 5/6 of the bonus that
would have been due had you worked to the end of the fiscal year.) The
determination of the amount of this payment shall be made by the Company's
actuaries and benefit consultants in accordance with this section and, absent
manifest error, shall be final, binding and conclusive upon you and the
Company.
3.2 Continuation
of Benefits.
During
the year following the Effective Date that results in benefits under this
Article 3 (the “Severance Period”), you shall continue to receive the medical,
prescription, dental, disability, employee life, group life, accidental death
and travel accident insurance benefits at the levels to which you were entitled
on the day preceding the Effective Date, or reasonably equivalent benefits,
if
continuation is 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, these medical and
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other
welfare benefits shall be secondary to those provided under that
plan.
4. EFFECT
OF TERMINATION ON STOCK OPTIONS AND RESTRICTED STOCK
GRANTS.
In the
event of any termination of your employment, all options to purchase the common
stock of CBRL (or its successor) or any restricted stock of CBRL (or its
successor); (such options and/or restricted stock collectively referred to
hereinafter as “CBRL Securities”) or any securities, including those of the
Company, that may be issued in substitution therefor (“Substitute Securities”)
held by you that are vested prior to the Effective Date shall be exercisable
in
accordance with their terms; all CBRL Securities or Substitute Securities 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 the CBRL Securities provide for immediate vesting
in the event of a Change in Control, the terms of the agreement governing those
securities shall control. If your CBRL Securities do 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 CBRL Securities that
are
held by you that are not vested on the Effective Date multiplied by (b) the
difference between: (i) the applicable closing price of such CBRL Securities,
as
the case may be, 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 price, if any, applicable to such
CBRL Securities.
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 5 shall be construed as prohibiting the
Company from pursuing any remedies available to it for any breach or threatened
breach of this Section 5, including, without limitation, the recovery of damages
from you or any person or entity acting in concert with you.
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).
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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 6.3. 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 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
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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.
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.
XXXXX’X
ROADHOUSE, INC.
By:
_______________________________________
Title:
______________________________________
The
foregoing is fully agreed to and accepted by:
Company
Employee's Signature: ________________________
Please
Print or Type Name: ___________________________
Please
Print or Type Title: ____________________________
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