SEVERANCE AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
SEVERANCE AGREEMENT AND GENERAL RELEASE
THIS SEVERANCE AGREEMENT AND GENERAL RELEASE (this “Agreement”) is made and entered into
effective as of the 22nd day of August, 2011, by and between Xxxxxx Xxxxx (hereinafter generally
referred to as “Xx. Xxxxx”) and O’Charley’s Inc. and its subsidiaries, affiliates and related
entities, with a principal office of 0000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 (as more fully
defined in Paragraph 2 below, “O’Charley’s”).
W I T N E S S E T H:
WHEREAS, Xx. Xxxxx is the President of the company’s “O’Charley’s” concept, and the parties
have agreed that Xx. Xxxxx’x last day of employment with O’Charley’s would be the close of business
on August 22, 2011 (the “Effective Date”); and
WHEREAS, Xx. Xxxxx and X’Xxxxxxx’x are parties to a certain Executive Employment Agreement
dated September 25, 2009 (the “Employment Agreement”); and in connection therewith, and following a
period of negotiations between the parties, Xx. Xxxxx and O’Charley’s wish to enter into this
Agreement so that Xx. Xxxxx may provide a general release of claims against O’Charley’s in exchange
for certain benefits and compensation set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and
for other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, it is agreed as follows:
1. Resignation. Xx. Xxxxx hereby confirms his resignation as of the Effective Date
from his position as President of the “O’Charley’s” concept, and from all positions held as an
executive, officer, director or otherwise with O’Charley’s subsidiaries, related entities and
affiliates of the same.
2. Release. In consideration of the payment described in Paragraph 13 below and the
mutual promises herein, Xx. Xxxxx does hereby irrevocably and unconditionally release, acquit and
discharge O’Charley’s Inc., any parent, related or affiliated companies and all other subsidiaries,
assigns, predecessors or transferees, all present and former directors, officers, insurers,
employees, servants and agents of any of them (together, individually and collectively,
“O’Charley’s”), from any and all manner of actions, charges, complaints, suits, proceedings,
claims, liabilities, obligations, agreements, controversies, demands, costs, losses, debts and
expenses whatsoever of any kind or nature, at law or in equity, up until the Effective Date,
whether known or unknown, fixed or contingent, xxxxxx or inchoate, arising out of or in any way
connected with the employment of Xx. Xxxxx by O’Charley’s and with his separation from employment
with O’Charley’s, including but not limited to any and all claims under the Employment Agreement or
otherwise for pay, benefits, damages, or any other relief which were, might or could have been
asserted in any court, before any arbitrator, or before any administrative agency, including
without limitation, the Civil Rights Act of 1991; Title VII of the Civil Rights Act of 1964; the
Civil Rights Act of 1866; the Americans with Disabilities Act; the
Rehabilitation Act of 1973; the Age Discrimination in Employment Act; the Older Workers
Benefit Protection Act; the Family and Medical Leave Act; the Employee Retirement Income Security
Act of 1974; the Equal Pay Act; the Fair Labor Standards Act; the Vietnam Era Veteran’s
Readjustment Assistance Act; the Uniformed Service Employment and
Reemployment Rights Act of 1994;
the Worker Adjustment and Retraining Notification Act; the Fair Credit Reporting Act; the
Immigration Reform and Control Act of 1986; the Occupational Safety and Health Act of 1970; the
Employee Polygraph Protection Act; any and all “whistle blower” employee statutes or regulations
(i.e., those providing protection to an employee who raises charges of illegality, impropriety,
workplace misconduct, failure to adhere to policies and procedures, etc.) any amendments to any of
the foregoing, and any other federal, state, or local statute, regulation, ordinance, or common
law, including without limitation any law related to discrimination (i.e., those pertaining
generally to race, color, sex, age, religion, national origin, sexual orientation, worker’s
compensation or disability), retaliatory discharge (whether actual or constructive, and as and to
the extent related to any of the foregoing), terms and conditions of employment, or termination of
employment, to the full extent that such a release is allowed by law. This provision does not
include the release of claims with respect to any vested benefits under a plan governed by the
Employee Retirement Income Security Act or any claim related to the rights and benefits granted by
the express terms of this Agreement.
In consideration of the mutual promises and consideration given herein, O’Charley’s does
hereby irrevocably and unconditionally release, acquit and discharge Xx. Xxxxx, his spouse, his
heirs, his successors and assigns from any and all manner of actions, charges, complaints, suits,
proceedings, claims, liabilities, obligations, agreements, controversies, demands, costs, losses,
debts and expenses whatsoever of any kind or nature, at law or in equity, up until the Effective
Date, whether known or unknown, fixed or contingent, xxxxxx or inchoate, arising out of or in any
way connected with the employment of Xx. Xxxxx by X’Xxxxxxx’x, with his separation from employment
with O’Charley’s, including but not limited to any claim under the Employment Agreement or any
claim for reimbursement of relocation expenses.
Both parties recognize and agree that these mutual releases are only for claims which have
accrued as of the Effective Date, and do not include any claim for breach of this Agreement, nor
any claim for breaches of the portions of the Employment Agreement reaffirmed by this Agreement
(including, without limitation, paragraphs 16, 17 and 20 hereof) after the Effective Date.
3. Waiver. Xx. Xxxxx acknowledges that he is aware of his rights under the laws
specifically and generally described above and that he waives those rights to the full extent that
waiver is allowed by law; although the provisions of such waiver are not intended to be, nor shall
the same be construed as, an indication that Xx. Xxxxx has any legitimate causes of action under
such provisions nor that O’Charley’s has taken any actions in violation of such provisions.
4. No Admission. Xx. Xxxxx also expressly acknowledges that the payment described
below shall not be considered an admission of liability or an admission that O’Charley’s has
violated any law, regulation or contract (express or implied). Xx. Xxxxx further acknowledges that
the payment provided hereunder also represents payment in full in satisfaction and resolution of
all potential and/or disputed claims for back pay, severance pay, bonuses, equity grants/options,
vacation pay (to the extent permitted by applicable law and except to the extent separately paid
pursuant to company policy), compensatory, punitive, and/or liquidated damages, and damages or
relief of any kind including costs, attorneys’ fees, and expenses arising out of or pertaining to
the unasserted claims released by this Agreement.
5. No Pending Complaints. Xx. Xxxxx represents and warrants that he has not filed any
complaint(s) or charge(s) against O’Charley’s with the Equal Employment Opportunity Commission or
the state commission empowered to investigate claims of employment discrimination, the United
States Department of Labor, the Office of Federal Contract Compliance Programs, or with any other
local, state or federal agency or court, and that if any such agency or court assumes jurisdiction
of any complaint(s) or charge(s) against O’Charley’s on behalf of Xx. Xxxxx, then Xx. Xxxxx will
request such agency or court to withdraw from the matter and Xx. Xxxxx will refuse any benefits
derived therefrom, and the release contained in this
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Agreement shall apply to such claim. This
Agreement will not affect Xx. Xxxxx’x right to hereafter file a charge with or otherwise
participate in an investigation or proceeding conducted by the Equal Employment Opportunity
Commission regarding matters which arose after the Effective Date and which are not the subject of
this Agreement. Xx. Xxxxx represents and warrants that he has no knowledge of any practice engaged
in by O’Charley’s that is or was a violation in any material respect of any applicable state law or
regulations or of any federal law or regulations including, but not by way of limitation, the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the
regulations promulgated thereunder.
6. Tax Liability. Xx. Xxxxx further acknowledges and agrees that any tax consequence
which he may personally incur which arises from or is attributable to the payment described in
Paragraph 13 is solely his responsibility, although O’Charley’s agrees to continue making
withholdings and deductions from such payments in accordance with Xx. Xxxxx’x most current W-4 on
file with O’Charley’s.
7. Civil Action Waiver. In consideration of the payments described in Paragraph 13
below, Xx. Xxxxx further agrees to neither institute nor in any manner voluntarily participate in,
as a class member or otherwise, any civil action or arbitration against O’Charley’s which is now
pending or may hereafter be brought that concerns any matter encompassed by this Agreement.
8. Confidentiality / Return of Company Property. (a) Xx. Xxxxx agrees to continue to
comply with the Confidentiality provisions contained in Section 5.3 of the Employment Agreement.
(b) Additionally, Xx. Xxxxx shall not at any time, either individually or jointly with others,
publish, disclose, use, or authorize anyone else to publish, disclose, or use, any trade secret,
proprietary or confidential material or information relating to any aspect of the business or
operations of O’Charley’s Inc. including, without limitation, financial information, customer
identities, preferences, profiles and addresses, employee lists and information, trade or
industrial practices, technology, methods of operation, marketing strategies, training methods and
materials, recipes or know-how, or development plans and specifications of O’Charley’s. (c)
Additionally, Xx. Xxxxx also agrees to return, and shall not retain possession of, any and all
copies of confidential and proprietary O’Charley’s material, information and property in his
possession or control (these include, without limitation, all documents, manuals, coupons, discount
cards, Ambassador cards, letterhead/stationary, business cards, computers, computer programs,
phones, cds, diskettes, emails, customer lists, notebooks, reports and other written or graphic
materials, including all copies thereof, in any way relating to O’Charley’s/ business and prepared
by Xx. Xxxxx or obtained from O’Charley’s during the course of Xx. Xxxxx’ employment with
O’Charley’s); and regardless of whether any of the foregoing should be in electronic form, tangible
form, or any combination thereof.
However, notwithstanding anything else herein, Xx. Xxxxx and X’Xxxxxxx’x recognize and agree
that Xx. Xxxxx has extensive knowledge, skill and experience related to the casual dining
restaurant industry which were gained prior to beginning his employment with O’Charley’s, and
subject to the restrictions of paragraph 16 of this Agreement, nothing herein shall construed to
prevent Xx. Xxxxx from utilizing such knowledge, skill and experience in the future, for the
benefit of himself or a future employer.
It is expressly agreed, acknowledged and understood that a violation of this paragraph would
be a material breach of Xx. Xxxxx’x obligations under this Agreement and would cause damage to
O’Charley’s in such a way that it would be impossible to calculate the actual damages. Any such
disclosure will entitle O’Charley’s to injunctive and monetary relief.
9. Termination of Employment / Benefits Information. Xx. Xxxxx acknowledges that his
employment with O’Charley’s, together with his rights to continue to participate in (and
O’Charley’s corresponding obligation to provide, make contributions to or fund) certain
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O’Charley’s
related benefits, car allowances, deferred compensation plans (including bonus plans and “partner
banks”), stock purchase plans, 401k plans, ambassador card programs, or except with respect to
Insurance Coverages and COBRA coverage as more fully provided below, any other O’Charley’s
monitored or provided benefit plan or program, will cease effective the close of business on the
Effective Date. Additionally, Xx. Xxxxx’x distribution of any vested deferred compensation
balances, vested 401k balances, vested O’Charley’s shares or options, etc. shall be made expressly
in accordance with the terms and conditions of the O’Charley’s plans governing the same and
elections thereunder, all in accordance with applicable law. Regarding Xx. Xxxxx’x rights under
O’Charley’s Deferred Compensation Plan, the parties agree that, as of the Effective Date, Xx.
Xxxxx’x contributions to the Deferral Account are 100% vested and any Company Discretionary
Contribution Amounts and Company Matching Contributions Amounts are 25% vested (collectively, the
“Vested Deferred Compensation”). The full amount of Xx. Xxxxx’x Vested Deferred Compensation shall
be distributed to Xx. Xxxxx on the first O’Charley’s pay period subsequent to March 15, 2012.
Xx. Xxxxx will be advised of his right to continue health, vision and dental coverages with
O’Charley’s (collectively, the “Insurance Coverages”). To the extent that Xx. Xxxxx wishes to
continue with any or all of the Insurance Coverages, then Xx. Xxxxx will be entitled to continue
with the Insurance Coverages so elected for a period of up to fifty-two (52) weeks following the
Effective Date; provided that, all such Insurance Coverages shall terminate on the
date or dates that Xx. Xxxxx receives substantially similar coverage and benefits, without waiting
period or pre-existing condition limitations, under the plans and programs of a subsequent employer
or spouse’s employer (such coverage and benefits to be determined on a coverage by coverage or
benefit by benefit basis).
All such Insurance Coverages shall be offered to Xx. Xxxxx on a level equivalent to that had
Xx. Xxxxx continued his employment with O’Charley’s during such period, with such benefits provided
to Xx. Xxxxx at no less than the same coverage level and at no more of a cost to Xx. Xxxxx than
that which existed on the date immediately prior to the Effective Date (subject in all instances to
any reduction in coverage or increases in cost as shall become generally effective for those
continuing O’Charley’s employees that are at a generally equivalent rank and position as the one
held by Xx. Xxxxx as of the Effective Date), and to the extent of any such reduction in coverage or
increase in cost, O’Charley’s shall utilize good faith efforts to notify Xx. Xxxxx of the existence
of the same as soon as reasonably practicable following O’Charley’s becoming aware of such
reduction or increase as applicable. Xx. Xxxxx will remain responsible for Xx. Xxxxx’x employee
premium portion of the Insurance Coverages so elected, and to the extent of any such election, Xx.
Xxxxx hereby authorizes O’Charley’s to deduct such employee premiums from the severance payments to
be made to Xx. Xxxxx pursuant to Paragraph 13 hereunder.
Additionally, Xx. Xxxxx will be advised of his COBRA continuation rights, and if he desires to
continue COBRA coverage at the conclusion of O’Charley’s provision of Insurance Coverages as more
fully provided in this Paragraph 9, Xx. Xxxxx will be responsible for the entire cost of any COBRA
coverage (to the extent that Xx. Xxxxx has elected or continues to elect COBRA coverage) after the
election to continue COBRA coverage, with the understanding that the period of calculating COBRA
eligibility shall commence at the conclusion of the health insurance benefits provided by
O’Charley’s as a severance benefit hereunder. Xx. Xxxxx acknowledges that the making of timely
premium payments (both during and subsequent to the severance period) is solely Xx. Xxxxx’x
obligation; although O’Charley’s agrees to timely and properly remit any and all premiums deducted
from Xx. Xxxxx’x xxxxxxxxx payments as provided hereunder.
10. Non-Disparagement. In consideration of the payments described in Paragraph 13
below and the release provided in Paragraph 2 above, each of Xx. Xxxxx and O’Charley’s further
agrees to refrain from making any negative or disparaging comments regarding the other.
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11. Validity. If any term, condition, section or provision of this Agreement shall be
held to be invalid or unenforceable, such invalidity shall not affect any other term, condition,
section or provision hereof, and this Agreement shall be construed and enforced as if such term,
condition, section or provision had not been included.
12. Arbitration Agreement. Xx. Xxxxx acknowledges that any action for breach of this
Agreement or of any term of this Agreement is subject to the Arbitration Agreement in effect
between Xx. Xxxxx and O’Charley’s. Xx. Xxxxx reaffirms the enforceability of the Arbitration
Agreement both with respect to this Agreement and his employment with O’Charley’s, and agrees not
to challenge the enforceability of the same.
13. Consideration. In return for Xx. Xxxxx’x execution, delivery and non-revocation
of this Agreement, together with his faithful and strict adherence and compliance to the terms
hereof, O’Charley’s agrees to pay Xx. Xxxxx the following:
(a) The sum total of Four Hundred Forty-Five Thousand and 00/100 Dollars ($445,000.00) payable
in Fifty One (51) equal weekly installments of Eight Thousand Five Hundred Fifty-Seven and 69/100
Dollars ($8557.69), with a final and Fifty Second (52nd) weekly installment of Eight
Thousand Five Hundred Fifty-Seven and 81/100 Dollars ($8557.81)(in all cases less applicable taxes
and withholdings as required by law, which Xx. Xxxxx hereby authorizes O’Charley’s to deduct from
such pay), and beginning on the next regularly scheduled payday following the 8th day
after the later to occur of: (i) the execution and delivery of this Agreement by Xx. Xxxxx, or (ii)
the Effective Date; provided that Xx. Xxxxx has not exercised his right to revoke this
Agreement in the interim as provided in Paragraph 14 below. In the event of Xx. Xxxxx’x death
prior to receipt of all severance payments pursuant to this subsection (a), O’Charley’s shall
continue to make payments in accordance with the terms of this Agreement to Xx. Xxxxx’x devisee,
legatee, or other designee, or if there be no such designee, then to Xx. Xxxxx’x estate.
(b) In addition to paying Xx. Xxxxx his standard compensation through the Effective Date, Xx.
Xxxxx will receive payment of all accrued but unused vacation pay in the amount of One Thousand Two
Hundred Six and 63/100 Dollars ($1206.63). All such sums shall be payable, minus applicable
withholdings and taxes as required by law, beginning on the next regularly scheduled payday
following the 8th day after the later to occur of: (i) the execution and delivery of
this Agreement by Xx. Xxxxx, or (ii) the Effective Date; provided that Xx. Xxxxx has not
exercised his right to revoke this Agreement in the interim as provided in Paragraph 14 below.
Furthermore, attached as Schedule A is a listing of all vested (but unexercised) or
unvested restricted stock awards/stock option grants (if any) held by Xx. Xxxxx as of the Effective
Date. Xx. Xxxxx agrees that Schedule A accurately reflects all such awards and their
respective terms held by him as of the date hereof. All such awards were granted pursuant to the
terms of the O’Charley’s 1990 Employee Stock Plan, the O’Charley’s 2000 Stock Incentive Plan, or
the O’Charley’s 2008 Employee Stock and Incentive Plan. Pursuant to such plans, upon the Effective
Date, each of the unvested restricted stock awards/unvested stock options will automatically
terminate.
14. Revocation. Xx. Xxxxx has consulted with his attorney before his execution of
this Agreement. Xx. Xxxxx has been advised that he had twenty-one (21) days from the date this
Agreement was first presented to him in which to consider executing this Agreement; and that his
decision to execute prior to the expiration of such twenty-one (21) day period was knowingly and
voluntarily made. Xx. Xxxxx further acknowledges that this Agreement has been individually
negotiated and is not part of a group exit incentive or other separation package.
By signing and returning this Agreement, Xx. Xxxxx acknowledges that he has read carefully and
fully understands the terms of this Agreement, has had an opportunity to consult with his attorney
prior to signing it and is signing it knowingly and voluntarily and has not been
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coerced or
threatened into signing it or promised anything else in exchange for signing it (other than the
consideration provided in paragraph 13 above).
Furthermore, Xx. Xxxxx is aware that he has a right for a period of seven (7) days following
his execution and delivery of this Agreement (the “Revocation Period”), to revoke this Agreement.
Xx. Xxxxx’x receipt, however, of any severance benefits under this Agreement is contingent on (1)
his execution and delivery of this Agreement, (2) the return of all company property noted, but not
limited to, items listed in Paragraph 8 above and (3) the expiration of the Revocation Period
without this Agreement being revoked by Xx. Xxxxx.
15. Termination of Severance Payments. Severance payments and the other benefits
under this Agreement shall cease if Xx. Xxxxx materially breaches any material term of this
Agreement, but only after written notice to Xx. Xxxxx describing the alleged material breach in
detail, including the specific actions of Xx. Xxxxx which X’Xxxxxxx’x alleges constitute such a
breach and the specific section of this Agreement which O’Charley’s alleges were breached. Xx.
Xxxxx shall have fifteen (15) days to cure such breach, and if the breach is cured, the Severance
Payments shall resume upon the next scheduled payday and any missed Severance Payments due to the
alleged breach shall also be paid on the next scheduled payday. Should such breach not be cured
within such fifteen (15) day period, then O’Charley’s shall have no obligation to make any further
severance payments or provide any additional benefits hereunder. Xx. Xxxxx agrees that if he
breaches any of the provisions of Paragraphs 8, 10, 16 and 17, such breach likely will not have an
adequate remedy at law and that O’Charley’s shall be entitled, in addition to all other legal
and/or equitable remedies available to it, to cease making the payments provided under paragraph
13 and apply to and obtain from a court of competent jurisdiction an injunction against any
violation thereof with the prevailing party entitled to recover all costs of such action,
including reasonable attorneys’ fees. These rights and remedies shall be cumulative and not
alternative. Without limiting the generality of the foregoing, the prevailing party in any action
brought to enforce the terms and conditions of this Agreement (not just those of Paragraphs 8, 10,
16 and 17), will be entitled to recoup their reasonable attorneys fees in enforcing this
Agreement.
16. Non-Compete. Xx. Xxxxx agrees that he will not, without O’Charley’s prior written
consent, for a period of fifty-two (52) weeks following the Effective Date (the “Non-Compete
Period”) enter into or engage in any business that competes with O’Charley’s business. During the
Non-compete Period, Xx. Xxxxx shall not be employed by, a consultant/contractor for, nor promote or
assist financially or otherwise, any person, firm, association, partnership, corporation, or any
other entity engaged in any business which competes with O’Charley’s Business.
Xx. Xxxxx understands that he shall be competing if he engages in any or all of the activities
set forth herein directly as an individual on his own account, or indirectly as a partner, joint
venturer, employee, agent, consultant, independent contractor, officer and/or director of any firm,
association, corporation, or other entity, or as a stockholder of any corporation in which Xx.
Xxxxx owns, directly or indirectly, individually or in the aggregate, more than one percent (1%) of
the outstanding stock; provided, however, that Xx. Xxxxx’x direct or indirect
ownership as a stockholder of less than five percent (5%) of the outstanding stock of any publicly
traded corporation shall not by itself constitute a violation of this paragraph.
O’Charley’s Business is defined as “full-service casual dining” restaurant concepts that sell
alcoholic beverages and consist of ten (10) or more restaurants as of the Effective Date. By way
of example, for purposes of determining what constitutes “full service casual dining”, the
following restaurant concepts shall be illustrative (and expressly not exhaustive) of concepts
which would trigger the restrictions of this paragraph 16: Longhorn Steakhouse, Red Xxxxx, Olive
Garden, Texas Roadhouse, Chili’s, Applebees, Outback, Red Lobster, TGI Fridays, Buffalo Wild Wings,
etc.; however, the following concepts are illustrative (but expressly not
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exhaustive) of concepts
which are NOT intended to trigger the restrictions of this paragraph 16: The Cheesecake Factory,
Xxxxxxx’x Steakhouse, Xxxxxx’x Steakhouse, Capital Grille, Chipotle, Café Express, etc. In
determining whether or not any particular restaurant concept triggers the definition of a “full
service casual dining” concept, the parties agree to in good faith consider all relevant factors
inherent in such restaurant category, and to the extent that the concept is large enough, the
parties may consider external sources and industry leading publications such as Nation’s Restaurant
News, etc. in arriving at such determination.
Xx. Xxxxx understands that the activities described in this paragraph shall be prohibited only
within the United States. If it shall be judicially determined that Xx. Xxxxx has violated any of
his obligations under this paragraph, then the period applicable to the obligation which Xx. Xxxxx
shall have been determined to have violated shall automatically be extended by a period of time
equal in length to the period during which said violation(s) occurred.
17. Non-Solicitation. Xx. Xxxxx agrees that he will not, without O’Charley’s prior
written consent, for a period of eighteen (18) months following the Effective Date, directly or
indirectly, solicit to hire or hire (or cause to leave the employ of O’Charley’s) any active
salaried employee of O’Charley’s at the level of manager or above.
18. Governing Law. This agreement shall be construed in accordance with the laws of
the State of Tennessee, without regard to its conflict of laws or choice of laws provisions. Each
and every term of this agreement shall be binding upon and inure to the benefit of the successors
and assigns of the parties hereto.
19. Section 409A Provisions. It is intended that (i) each payment or installment of
payments provided under this Agreement is a separate “payment” for purposes of Code Section 409A
and (ii) that the payments satisfy, to the greatest extent possible, the exemptions from the
application of Code Section 409A, including those provided under Treasury Regulations
1.409A-1(b)(4) (regarding short-term deferrals), 1.409A-1(b)(9)(iii) (regarding the two-times, two
year exception), and 1.409A-1(b)(9)(v) (regarding reimbursements and other separation pay).
Notwithstanding anything to the contrary in this Agreement, if O’Charley’s determines (i) that on
the Effective Date or at such other time that O’Charley’s determines to be relevant, Xx. Xxxxx is a
“specified employee” (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of
O’Charley’s and (ii) that any payments to be provided to Xx. Xxxxx pursuant to this Agreement are
or may become subject to the additional tax under Code Section 409A(a)(1)(B) or any other taxes or
penalties imposed under Code Section 409A (“Section 409A Taxes”) if provided at the time otherwise
required under this Agreement, then such payments will be delayed until the date that is six (6)
months after the date of the Executive’s termination of employment with O’Charley’s, or such
shorter period that, as determined by O’Charley’s, is sufficient to avoid the imposition of Section
409A Taxes (the “Payment Delay Period”). Any payments delayed pursuant to this Paragraph 19 will be
made in a lump sum on the first day of the seventh month following Xx. Xxxxx’ termination of
employment, or such earlier date that, as determined by O’Charley’s, is sufficient to avoid the
imposition of any Section 409A Taxes. The parties acknowledge and agree that, to the extent
applicable, this Agreement shall be interpreted in accordance with, and the parties agree to use
their reasonable best efforts to achieve timely compliance with, Code Section 409A and the Treasury
Regulations and other interpretive guidance issued thereunder, including without limitation any
such regulations or other guidance that may be issued after the Effective Date. In addition, to
the extent that any reimbursement (including expense reimbursements) provided for pursuant to this
Agreement or other related agreement provides for a “deferral of compensation” within the meaning
of Code Section 409A and the Treasury Regulations promulgated thereunder, such amounts shall be
reimbursed in accordance with Section 1.409A-3(i)(1)(iv) of the Treasury Regulations.
Notwithstanding the foregoing, O’Charley’s does not warrant that any payments provided herein will
qualify for favorable treatment under Code Section 409A, and O’Charley’s will not be liable to Xx.
Xxxxx for any tax, interest or penalties that Xx. Xxxxx might owe as a result of any payments
hereunder.
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20. Indemnification. Anything contained in this Agreement to the contrary
notwithstanding, the parties expressly agree that nothing in this Agreement is intended to
abrogate, diminish or amend O’Charley’s continued indemnification obligations to Xx. Xxxxx pursuant
to Section 6.7 of the Employment Agreement.
21. Integration. Xx. Xxxxx acknowledges and agrees that this Agreement contains the
parties’ entire understanding and supercedes and replaces any other agreement regarding the subject
matter hereof, except that Sections 5.3 (Confidentiality), 6.6 (No Mitigation) and 6.7
(Indemnification) of the Employment Agreement have been incorporated herein and remain in full
force and effect, and the Arbitration Agreement remains in effect pursuant to Paragraph 12 of this
Agreement. Xx. Xxxxx acknowledges that this Agreement is not executed in reliance upon any
statement or representation made by O’Charley’s outside of this Agreement and that the benefits and
compensation provided or referenced hereunder are in lieu of all other benefits and compensation
whatsoever, whether pursuant to the Employment Agreement or otherwise. Xx. Xxxxx and X’Xxxxxxx’x
further agree and acknowledge that Xx. Xxxxx shall have no obligation, whether pursuant to Section
3.2(e) of the Employment Agreement or otherwise, to reimburse O’Charley’s for any of the relocation
costs incurred by O’Charley’s on Xx. Xxxxx’x behalf.
22. Binding Effect / No Oral Modification. This Agreement shall be binding upon
O’Charley’s, Xx. Xxxxx and upon Xx. Xxxxx’x heirs, administrators, representatives, executors,
successors, and assigns. The provisions of this Agreement may not be modified orally, but only in
a writing signed by the parties to be charged.
I HAVE READ THE FOREGOING RELEASE, I FULLY UNDERSTAND ITS TERMS, I HAVE BEEN GIVEN 21 DAYS OR
REASONABLE TIME TO CONSULT WITH AN ATTORNEY
ABOUT IT, AND I HAVE SIGNED IT VOLUNTARILY THIS THE 22nd DAY OF AUGUST, 2011.
/s/ Xxxxxx Xxxxx
|
August 22, 2011 | |||
/s/ Xxxxx Xxxx
|
August 22, 2011 | |||
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Schedule A
Xxxxxx Xxxxx
| • | 150,000 non-qualified stock options, with a strike price of $9.62. As of the Effective Date, such options are unvested. |
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