Exhibit 10(m)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), effective as of August 1, 2005
("Effective Date"), is made and entered into by and between CBRL GROUP, INC.
(the "Company") and XXXXXXX X. XXXXXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, Executive currently is serving as the Chairman, President and
Chief Executive Officer of the Company pursuant to an employment agreement dated
as of August 4, 2001 (the "Prior Employment Agreement") and also is a party to a
retention agreement dated as of October 8, 1999 (the "Retention Agreement") (the
Prior Employment Agreement and the Retention Agreement being hereinafter
referred to as the "Prior Agreements"); and
WHEREAS, the Prior Agreements currently expire on July 30, 2006; and
WHEREAS, the Company's Board of Directors (the "Board") recognizes that the
Executive's contribution to the growth and success of the Company during prior
years has been substantial and the Board now desires, and deems it to be in the
best interests of the Company and its shareholders, to provide for the continued
employment of the Executive and to make certain changes in the Executive's
employment arrangements with the Company which the Board has determined will
reinforce and encourage the Executive's continued attention and dedication to
the Company. and
WHEREAS, the Executive is willing to commit himself to continue to serve
the Company on the specified terms and conditions; and
WHEREAS, in order to effect the foregoing purposes, to terminate the Prior
Agreements as of the Effective Date and to provide for the employment
relationship of the Executive to be embodied in this single document, the
Company and the Executive wish to enter into this employment agreement on the
terms and conditions set forth below;
NOW, THEREFORE, for and in consideration of the premises, the mutual
promises, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. EMPLOYMENT.
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Subject to the terms and conditions of this Agreement, the Company hereby
employs Executive as its Chief Executive Officer. During the term of this
Agreement, subject to Section 3.1, Executive also shall serve as either the
Company's Chairman or President.
2. DURATION OF AGREEMENT.
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2.1 Initial Term. This employment shall begin as of the Effective Date, and
shall continue until it terminates pursuant to this Agreement. For purposes of
this Agreement, each anniversary of the Effective Date shall be referred to as
an "Anniversary Date," and the one-year period between the Effective Date and
the first Anniversary Date, and thereafter from each Anniversary Date to the
next, shall be referred to as a "Contract Year." Unless extended pursuant to
Section 2.2, or earlier terminated pursuant to Sections 5, 6, 7, 8, 9 or 10,
this Agreement will automatically terminate on July 31, 2008. The specified
period during which this Agreement is in effect is the "Term."
2.2 Extensions of Term.
2.2.1 By Agreement. The Term may be extended to a specified future
date at any time by the specific written agreement of the parties signed
prior to the original expiration date specified in Section 2.1, or any
subsequent expiration date established pursuant to Section 2.2.2.
2.2.2 Annual Extension. On each Anniversary Date, beginning August 1,
2008, unless either party to this Agreement has notified the other in
writing not less than twelve (12) months prior to such Anniversary Date of
that party's intention to allow this Agreement to expire and not be renewed
at the end of the then current Term, the Term shall automatically be
extended for one Contract Year on and from each Anniversary Date.
2.2.3 Extension Because of Change in Control. In the event of a Change
in Control (as hereinafter defined) of the Company, the Term shall
automatically be extended for two (2) Contract Years effective as of the
date of the Change in Control (the effect of this extension being that
following a Change in Control, Executive's employment shall continue for
the remainder of the Term of this Agreement, as the Term may have been
extended prior to the Change in Control pursuant to Section 2.2.2 above,
plus an additional two (2) Contract Years), at which time Executive shall
be entitled to exercise the rights and receive the benefits of this
Agreement that are described in Section 10. For purposes of this Agreement,
a "Change in Control" of the Company ---------- shall mean a change in
control of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided,
however, that, without limitation, such a Change in Control shall be deemed
to have occurred if during the Term: (a) any "person" (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing more than
thirty-five percent (35%) of the combined voting power of the Company's
then outstanding voting securities unless that acquisition was approved or
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ratified by a vote of at least 2/3 of the members of the Board in office
immediately prior to the acquisition; or (b) all or substantially all of
the assets of the Company are sold, exchanged or otherwise transferred
(other than to secure debt owed by the Company); or (c) the Company's
shareholders approve a plan of liquidation or dissolution; or (d)
individuals who at the beginning of the Term constitute members of the
Board of Company cease for any reason other than at the request or with the
concurrence of the Executive to constitute a majority thereof 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 a majority of the
directors then still in office who were directors at the beginning of the
Term.
3. POSITION AND DUTIES.
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3.1 Position. Executive shall serve as the Company's Chief Executive
Officer. Executive shall report to the Board and perform such duties and
responsibilities as may be prescribed from time-to-time by the Board, which
shall be consistent with the responsibilities of similarly situated executives
of comparable companies in similar lines of business. So long as Executive is
serving as Chief Executive Officer, the Company shall nominate Executive for
election as a member of the Board at each meeting of the Company's shareholders
at which the election of Executive is subject to a vote by the Company's
shareholders and to recommend that the shareholders of the Company vote to elect
Executive as a member of the Board. From time to time, Executive also may be
designated as Chairman of the Board or as President of the Company and to such
other offices within the Company or its subsidiaries as may be necessary or
appropriate for the convenience of the businesses of the Company and its
subsidiaries; provided, however, during the Term, he shall, in addition to the
title of Chief Executive Officer, also hold the title of either Chairman or
President.
3.2 Full-Time Efforts. Executive shall perform and discharge faithfully,
diligently and to the best of his ability such duties and responsibilities and
shall devote his full-time efforts to the business and affairs of the Company.
Executive agrees to promote the best interests of the Company and to take no
action that in any way damages the public image or reputation of the Company,
its subsidiaries or its affiliates.
3.3 No Interference With Duties. Executive shall not (i) engage in any
activities, or render services to or become associated with any other business
that in the reasonable judgment of the Board violates Article 14 of this
Agreement; or (ii) devote time to other activities which would inhibit or
otherwise interfere with the proper performance of his duties, provided,
however, that it shall not be a violation of this Agreement for Executive to (i)
devote reasonable periods of time to charitable and community activities and
industry or professional activities, or (ii) manage personal business interests
and investments, so long as such activities do not interfere with the
performance of Executive's responsibilities under this Agreement. Executive may,
with the prior approval of the Board (or applicable committee), serve on the
boards of directors (or other governing body) of other for profit corporations
or entities, consistent with this Agreement and the Company's policies.
3.4 Work Standard. Executive hereby agrees that he shall at all times
comply with and abide by all terms and conditions set forth in this Agreement,
and all applicable work policies, procedures and rules as may be issued by
Company. Executive also agrees that he shall comply with all federal, state and
local statutes, regulations and public ordinances governing the performance of
his duties hereunder.
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4. COMPENSATION AND BENEFITS.
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4.1 Base Salary. Subject to the terms and conditions set forth in this
Agreement, the Company shall pay Executive, and Executive shall accept, an
annual salary ("Base Salary") in the amount of Eight Hundred Seventy-five
Thousand and No/100 Dollars ($875,000). The Base Salary shall be paid in
accordance with the Company's normal payroll practices and may be increased from
time to time at the sole discretion of the Board.
4.2 Incentive, Savings and Retirement Plans. During the Term, Executive
shall be entitled to participate in all incentive (including, without
limitation, long term incentive plans), savings and retirement plans, practices,
policies and programs applicable generally to senior executive officers of the
Company ("Peer Executives"), and on the same basis as such Peer Executives,
except as to benefits that are specifically applicable to Executive pursuant to
this Agreement. Without limiting the foregoing, the following provisions shall
apply with respect to Executive:
4.2.1 Incentive Bonus. Executive shall be entitled to an annual bonus,
the amount of which shall be determined by the Compensation and Stock
Option Committee of the Board (the "Committee"). The amount of and
performance criteria with respect to any such bonus in any year shall be
determined not later than the date or time prescribed by Treas. Reg. ss.
1.162-27(e) in accordance with a formula to be agreed upon by the Company
and Executive and approved by the Committee that reflects the financial and
other performance of the Company and the Executive's contributions thereto.
Throughout the Term, the Executive's annual target (subject to such
performance and other criteria as may be established by the Committee)
bonus shall be no less than one hundred fifty percent (150%) of the Base
Salary.
4.2.2 Welfare Benefit Plans. During the Term, Executive and
Executive's eligible dependents shall be eligible for participation in, and
shall receive all benefits under, the welfare benefit plans, practices,
policies and programs provided by the Company (including, without
limitation, medical, prescription, dental, disability, executive life,
group life, accidental death and travel accident insurance plans and
programs) ("Welfare Plans") to the extent applicable generally to Peer
Executives.
4.2.3 Vacation. Executive shall be entitled to an annual paid vacation
commensurate with the Company's established vacation policy for Peer
Executives. The timing of paid vacations shall be scheduled in a reasonable
manner by the Executive.
4.2.4 Business Expenses. Executive shall be reimbursed for all
reasonable business expenses incurred in carrying out the work hereunder.
Executive shall follow the Company's expense procedures that generally
apply to other Peer Executives in accordance with the policies, practices
and procedures of the Company to the extent applicable generally to such
Peer Executives.
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4.2.5 Perquisites. Executive shall be entitled to receive such
executive perquisites, fringe and other benefits as are provided to the
senior most executives and their families under any of the Company's plans
and/or programs in effect from time to time and such other benefits as are
customarily available to Peer Executives.
4.3 Restricted Stock.
4.3.1 Shares. Subject to all of the conditions (including, without
limitation, satisfaction of the performance goals described in Section
4.3.2, the time of vesting and right to receive) and restrictions set forth
in this Section 4.3.1, Company hereby grants to Executive an award of
125,000 shares (the "Restricted Shares") of the Company's $0.01 par value
common stock (the "Shares"). Subject to satisfaction of the performance
goals described in Section 4.3.2, the Restricted Shares shall become vested
in, and shall be distributed to, the Executive in three (3) installments on
each of the dates set forth below (each of which shall be referred to as a
"Distribution Date," with the three (3) dates being collectively referred
to as the "Distribution Dates") in the following respective amounts:
Number of
Distribution Date Shares
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September 15, 2008 75,000 (60%)
September 15, 2009 25,000 (20%)
September 15, 2010 25,000 (20%)
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Total 125,000 (100%)
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Immediately following each Distribution Date, the Company shall promptly
cause its transfer agent to issue a certificate to the Executive evidencing
the Restricted Shares that became distributable to the Executive on the
Distribution Date. The Company's obligation to cause the issuance of any
stock certificate to Executive shall be subject to any applicable federal,
state, or local tax withholding requirements. If, prior to a Distribution
Date, the Executive's employment is terminated pursuant to Section 5 or
Section 8 (if the termination is not for "Good Reason," as defined
therein), all rights of the Executive in any Restricted Shares awarded
under this Section 4.3.1 that, as of the date of such termination, have not
become distributable to the Executive shall thereupon immediately terminate
and become forfeited. If, prior to a Distribution Date, the Executive's
employment is terminated for any reason other than pursuant to Section 5 or
Section 8 (if the termination is not for "Good Reason," as defined
therein), or if Executive's employment is not extended as provided in
Section 2.2.2, provided, in either case the Performance Goals (pro-rated
appropriately, if necessary, through the last day of Executive's
employment) described in Section 4.3.2 have been achieved, a stock
certificate for all the Restricted Shares (without pro-ration) that would
have become distributable to Executive on the succeeding Distribution Date
after cessation of Executive's employment (less any Restricted Shares
previously issued) shall thereupon be issued to Executive. Executive shall
not have any rights as a shareholder with respect to any Restricted Shares
until the issuance of a stock certificate evidencing the Restricted Shares.
The number of Restricted Shares awarded the Executive under this Section
4.3.1 shall be proportionately adjusted to reflect any stock dividend,
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stock split or share combination of the Shares or any recapitalization of
the Company occurring prior to a Distribution Date. Except as provided in
the preceding sentence, no adjustment shall be made on the issuance of a
stock certificate to the Executive as to any dividends or other rights for
which the record date occurred prior to a Distribution Date. The right of
the Executive to receive the Restricted Shares shall not be assignable or
transferable otherwise than by will or the laws of descent and
distribution. If in the opinion of its counsel, the issuance of any Shares
hereunder shall not be lawful for any reason, including the inability of
the Company to obtain from any regulatory body having jurisdiction or
authority deemed by such counsel to be necessary for such issuance, the
Company shall not be obligated to issue any such Restricted Shares, but, in
such event, shall be obligated to provide Executive with cash or non-cash
consideration having equivalent after tax value which is acceptable to the
Executive in the exercise of Executive's reasonable discretion. Upon
receipt of Restricted Shares at a time when there is not in effect under
the Securities Act of 1933, as amended, a current registration statement
relating to the Restricted Shares, the Executive shall represent and
warrant in writing to the Company that the Restricted Shares are being
acquired for investment and not with a view to the distribution thereof and
shall agree to the placement of a legend on the certificate or certificates
representing the Restricted Shares evidencing the restrictions on transfer
under said Act and the issuance of stop-transfer instructions by the
Company to its transfer agent with respect thereto. No Restricted Shares
shall be issued hereunder unless and until the then applicable requirements
of the Securities Act of 1933, the Tennessee Business Corporation Act, the
Tennessee Securities Act of 1980, as any of the same may be amended, the
rules and regulations of the Securities and Exchange Commission and any
other regulatory agencies and laws having jurisdiction over or
applicability to the Company, and the rules and regulations of any
securities exchange on which the Shares may be listed, shall have been
fully complied with and satisfied. Company shall use its best efforts to
cause all such requirements to be promptly and completely satisfied.
4.3.2 Vesting and receipt of the Restricted Shares is subject to
Executive achieving the performance criteria relative to Earnings Before
Interest, Taxes, Depreciation, Amortization and Rent (the "Performance
Goals") as of the end of each of the fiscal years immediately prior to each
Distribution Date. The Performance Goals are being established by the
Board's Compensation and Stock Option Committee (the "Committee")
contemporaneously with entering into this Agreement and prior to the
beginning of the measurement period for earning the Restricted Shares. The
Committee also shall certify in writing prior to each Distribution Date
whether the applicable Performance Goal was achieved.
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5. TERMINATION FOR CAUSE.
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This Agreement may be terminated immediately at any time by the Company
without any liability owing to Executive or Executive's beneficiaries under this
Agreement, except Base Salary through the date of termination and benefits under
any plan or agreement covering Executive which shall be governed by the terms of
such plan or agreement, under the following conditions, each of which shall
constitute "Cause" or "Termination for Cause":
(a) Any act by Executive involving fraud and any breach by
Executive of applicable regulations of competent authorities
in relation to trading or dealing with stocks, securities,
investments and the like or any willful or grossly negligent
act by Executive resulting in an investigation by the
Securities and Exchange Commission which, in each case, a
majority of the Board determines in its sole and absolute
discretion materially adversely affects the Company or
Executive's ability to perform his duties under this
Agreement;
(b) Attendance at work in a state of intoxication or otherwise
being found in possession at his place of work of any
prohibited drug or substance, possession of which would amount
to a criminal offense;
(c) Executive's personal dishonesty or willful misconduct in
connection with his duties to the Company;
(d) Breach of fiduciary duty to the Company involving personal
profit by the Executive;
(e) Conviction of the Executive for any felony or crime involving
moral turpitude;
(f) Material intentional breach by the Executive of any provision
of this Agreement or of any Company policy adopted by the
Board;
(g) The continued failure of Executive to perform substantially
Executive's duties with the Company (other than any such
failure resulting from incapacity due to Disability, and
specifically excluding any failure by Executive, after good
faith, reasonable and demonstrable efforts, to meet
performance expectations for any reason), after a written
demand for substantial performance is delivered to Executive
by a majority of the Board that specifically identifies the
manner in which such Board believes that Executive has not
substantially performed Executive's duties.
The cessation of employment of Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to Executive a copy of a
resolution duly adopted by the affirmative vote of not less than two-thirds of
the entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to Executive and Executive is
given an opportunity, together with counsel, to be heard before the Board),
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finding that, in the good faith opinion of such Board, Executive is guilty of
the conduct described in any one or more of subparagraphs (a) through (g) above,
and specifying the particulars thereof in detail.
6. TERMINATION UPON DEATH.
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Notwithstanding anything herein to the contrary, this Agreement shall
terminate immediately upon Executive's death, and the Company shall have no
further liability to Executive or his beneficiaries under this Agreement, other
than for payment of Accrued Obligations (as defined in Paragraph 9(a)(1)), the
timely payment or provision of Other Benefits (as defined in Paragraph 9(d)),
including without limitation benefits under such plans, programs, practices and
policies relating to death benefits, if any, as are applicable to Executive on
the date of his death, plus an additional amount equal to the Base Salary in
effect for the Executive at the date of the death of the Executive. This payment
shall be paid in a lump sum to the Executive's estate within 90 days after the
Company is given notice of the Executive's death. The rights of the Executive's
estate with respect to stock options and restricted stock, and all other benefit
plans, shall be determined in accordance with the specific terms, conditions and
provisions of the applicable agreements and plans; provided, however, that the
Restricted Shares granted under Section 4.3.1 of this Agreement shall
immediately vest and become distributable upon the death of the Executive.
7. DISABILITY.
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If the Company determines in good faith that the Disability of Executive
has occurred during the Term (pursuant to the definition of Disability set forth
below), it may give to Executive written notice of its intention to terminate
Executive's employment. In such event, Executive's employment with the Company
shall terminate effective on the 30th day after receipt of such written notice
by Executive (the "Disability Effective Date"), provided that, within the 30
days after such receipt, Executive shall not have returned to full-time
performance of Executive's duties. If Executive's employment is terminated by
reason of his Disability, this Agreement shall terminate without further
obligations to Executive, other than for payment of Accrued Obligations (as
defined in Paragraph 9(a)(1)), the timely payment or provision of Other Benefits
(as defined in Paragraph 9(d)), including without limitation benefits under such
plans, programs, practices and policies relating to disability benefits, if any,
as are applicable to Executive on the Disability Effective Date plus an
additional amount equal to the difference, if any, between the amount of
disability benefits paid to Executive for what would otherwise be the remainder
of the Term and the amount of Base Salary (in effect on the Disability Effective
Date) Executive would have received for the remainder of the Term that is in
effect as of the Disability Effective Date. The rights of the Executive with
respect to stock options and restricted stock, and all other benefit plans,
shall be determined in accordance with the specific terms, conditions and
provisions of the applicable agreements and plans; provided, however, that the
Restricted Shares granted under Section 4.3.1 of this Agreement shall
immediately vest and become distributable upon the Disability Effective Date.
For purposes of this Agreement, "Disability" shall mean: (i) a long-term
disability entitling Executive to receive benefits under the Company's long-term
disability plan as then in effect; or (ii) if no such plan is then in effect or
the plan does not apply to Executive, the inability of Executive, as determined
by the Board of the Company, to perform the essential functions of his regular
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duties and responsibilities, with or without reasonable accommodation, due to a
medically determinable physical or mental illness which has lasted (or can
reasonably be expected to last) for a period of six consecutive months. At the
request of Executive or his personal representative, the Board's determination
that the Disability of Executive has occurred shall be certified by two
physicians mutually agreed upon by Executive, or his personal representative,
and the Company. Without such independent certification (if so requested by
Executive), Executive's termination shall be deemed a termination by the Company
without Cause and not a termination by reason of his Disability.
8. EXECUTIVE'S TERMINATION OF EMPLOYMENT.
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Executive's employment may be terminated at any time by Executive for Good
Reason or no reason. For purposes of this Agreement, "Good Reason" shall mean:
(a) Other than his removal for Cause pursuant to Section 5, without the
written consent of Executive, the assignment to Executive of any
duties inconsistent in any material respect with Executive's position
(including status, offices, titles and reporting requirements),
authority, duties or responsibilities as in effect on the Effective
Date, or any other action by the Company which results in a
demonstrable diminution in such position, authority, duties or
responsibilities (including without limitation a shift of material
responsibility from the Chief Executive Officer position to the
Chairman position if Executive does not serve in both capacities),
provided, however, it is expressly understood and agreed that so long
as Executive is serving as the Chief Executive Officer, the
designation of another person as either Chairman or President (but not
both) shall not be "Good Reason" and also excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company promptly after receipt of
notice thereof given by Executive;
(b) A reduction by the Company in Executive's Base Salary as in effect on
the Effective Date or as the same may be increased from time to time;
(c) A reduction by the Company in Executive's annual target bonus
(expressed as a percentage of Base Salary) unless such reduction is a
part of an across-the-board decrease in target bonuses affecting all
other Peer Executives; provided, however that in any event, the
Company may not reduce Executive's annual target bonus (expressed as a
percentage of Base Salary) below one hundred fifty percent (150%) of
the Base Salary;
(d) The failure by the Company to continue in effect any "pension plan or
arrangement" or any "compensation plan or arrangement" in which
Executive participates or the elimination of Executive's participation
in any such plan (except for across-the-board plan changes or
terminations similarly affecting other Peer Executives);
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(e) The Company's requiring Executive, without his consent, to be based at
any office or location more than fifty (50) miles from the Company's
current headquarters in Lebanon, Tennessee;
(f) The material breach by the Company of any provision of this Agreement;
or
(g) The failure of 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 to assume expressly 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 such succession had
taken place.
Good Reason shall not include Executive's death or Disability. Executive's
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason hereunder, provided that
Executive raises to the attention of the Board any circumstance he believes in
good faith constitutes Good Reason within ninety (90) days after occurrence or
be foreclosed from raising such circumstance thereafter. The Company shall have
an opportunity to cure any claimed event of Good Reason (other than under
subparagraph (g) above) within 30 days of notice from Executive.
If Executive terminates his employment for Good Reason, upon the execution
and effectiveness of the Release attached hereto as an addendum and made a part
hereof (the "Release"), he shall be entitled to the same benefits he would be
entitled to under Paragraph 9 as if terminated without Cause or Paragraph 10 as
if terminated after a Change in Control, but not both, as applicable. If
Executive terminates his employment without Good Reason, this Agreement shall
terminate without further obligations to Executive, other than for payment of
Accrued Obligations (as defined in Paragraph 9(a)(1)) and the timely payment or
provision of Other Benefits (as defined in Paragraph 9(d)).
9. TERMINATION WITHOUT CAUSE.
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If Executive's employment is terminated by the Company without Cause prior
to the expiration of the Term (it being understood by the parties that
termination by death, Disability or expiration of this Agreement shall not
constitute termination without Cause), then Executive shall be entitled to the
following benefits upon the execution and effectiveness of the Release;
provided, however, that Executive shall not be entitled to payments under this
Paragraph 9 if he is entitled to payments under Paragraph 10:
(a) The Company shall pay to Executive commencing after the later of
the date of termination or the execution and effectiveness of the
Release, the aggregate of the following amounts:
(1) in a lump sum in cash within 30 days, the sum of (i)
Executive's Base Salary through the date of
termination to the extent not theretofore paid, (ii)
a pro-rata portion of amounts payable under any then
existing incentive or bonus plan applicable to
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Executive (including, without limitation, any
incentive bonus payable under Paragraph 4.2.1) for
that portion of the Contract Year through the date of
termination; (iii) any accrued expenses and vacation
pay to the extent not theretofore paid, and (iv)
unless Executive has elected a different payout date
in a prior deferral election, any compensation
previously deferred by Executive (together with any
accrued interest or earnings thereon) to the extent
not theretofore paid (the sum of the amounts
described in subparagraphs (i), (ii), (iii) and (iv)
shall be referred to in this Agreement as the
"Accrued Obligations");
(2) in installments ratably over twenty-four (24) months
in accordance with the Company's normal payroll cycle
and procedures, the amount equal to three (3) times
Executive's annual Base Salary in effect as of the
date of termination; and
(3) With respect to Paragraph 9(a)(2), the Company may,
at any time and in its sole discretion, make a lump
sum payment of all amounts, or all remaining amounts,
due to Executive; and
(b) The Restricted Shares granted under Section 4.3.1 of this
Agreement shall vest and become distributable in accordance with
that section. In addition, all stock options held by the
Executive that are vested prior to the effective date of the
termination shall be exercisable in accordance with their terms.
With respect to any stock options held by the Executive that, by
their terms do not immediately vest and become exercisable upon a
termination of employment without Cause, the Executive shall
receive, within 30 days after the termination, a lump sum cash
distribution equal to: (a) the number of Shares that is subject
to options held by the Executive which are not vested on the date
of termination of employment but which would otherwise vest
during the Term as in effect on the date of termination;
multiplied by (b) the difference between: (i) the closing price
of a Share as of the day prior to the effective date of
termination of employment (or, if the United States securities
trading markets are closed on that date, on the last preceding
date on which the United States securities trading markets were
open for trading), and (ii) the applicable exercise price(s) of
the non-vested options; and
(c) The Executive's participation in the life, medical and disability
insurance programs in effect on the date of termination of
employment shall continue until the later of (i) twenty-four (24)
months after Executive's date of termination, or (ii) the
expiration of the Term (as in effect at the time of termination);
provided, however, that notwithstanding the foregoing, the
Company shall not be obligated to provide such benefits if
Executive becomes employed by another employer and is covered or
permitted to be covered by that employer's benefit plans without
regard to the extent of such coverage; and
(d) To the extent not theretofore paid or provided, the Company shall
timely pay or provide to Executive any other accrued amounts or
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accrued benefits required to be paid or provided or which
Executive is eligible to receive under any plan, program, policy
or practice or contract or agreement of the Company (such other
amounts and benefits shall be referred to in this Agreement as
the "Other Benefits").
10. CHANGE IN CONTROL.
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(a) Except as otherwise provided herein, if, at any time during the
Term in effect after a Change in Control (as it may have been
extended by Sections 2.2.2 and 2.2.3) (i) Executive is
involuntarily terminated by the Company for reasons other than
Cause or (ii) Executive shall voluntarily terminate his
employment with the Company for Good Reason as defined in
Paragraph 8, Executive shall be entitled to receive the benefits
described in this Paragraph 10.
(b) Subject to the execution and effectiveness of the Release, upon a
termination described in Section 10(a), Executive shall be
entitled to receive the following benefits:
(1) The Company shall pay to Executive, in a lump sum in
cash within 30 days after the later of the date of
termination or the execution and effectiveness of the
Release, the aggregate of the following amounts:
(i) the Accrued Obligations (as defined in
Paragraph 9(a)(1)); and
(ii) the amount equal to three (3) times the sum
of (x) Executive's average annual Base
Salary for the three fiscal years prior to
the termination, and (y) Executive's
Applicable Annual Bonus (as defined below).
For purposes of this Agreement, "Applicable
Annual Bonus" means the greater of
Executive's actual annual incentive bonus
from the Company earned in the fiscal year
immediately preceding the fiscal year in
which Executive's termination date falls or
Executive's target annual incentive bonus
(e.g., 80% of Base Salary) for the year in
which Executive's termination date falls;
and
(2) The Restricted Shares granted under Section 4.3.1 of
this Agreement shall vest and become distributable in
accordance with that section. In addition, all stock
options held by the Executive that are vested
(including, without limitation, those vested by
reason of any Change in Control occurring prior to
the Executive's termination) prior to the effective
date of the termination shall be exercisable in
accordance with their terms. With respect to any
stock options held by the Executive that, by their
terms do not immediately vest and become exercisable
upon a termination of employment without Cause or for
Good Reason, the Executive shall receive, within 30
days after the termination, a lump sum cash
12
distribution equal to: (a) the number of Shares that
is subject to options held by the Executive which are
not vested on the date of termination of employment
but which would otherwise vest during the Term as in
effect on the date of termination; multiplied by (b)
the difference between: (i) the closing price of a
Share as of the day prior to the effective date of
termination of employment (or, if the United States
securities trading markets are closed on that date,
on the last preceding date on which the United States
securities trading markets were open for trading),
and (ii) the applicable exercise price(s) of the
non-vested options; and
(3) The Executive's participation in the life, medical
and disability insurance programs in effect on the
date of termination of employment shall continue
until the later of (i) thirty-six (36) months after
Executive's date of termination, or (ii) the
expiration of the Term (as in effect at the time of
termination); provided, however, that notwithstanding
the foregoing, the Company shall not be obligated to
provide such benefits if Executive becomes employed
by another employer and is covered or permitted to be
covered by that employer's benefit plans without
regard to the extent of such coverage; and
(4) To the extent not theretofore paid or provided, the
Company shall timely pay or provide to Executive any
Other Benefits (as defined in Paragraph 9(d)).
11. EXCISE TAX GROSS-UP.
--------------------
11.1 Anything in this Agreement to the contrary notwithstanding and except
as set forth below, in the event it shall be determined as provided below that
any payment or distribution by the Company to or for the benefit of Executive
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional
payments required under this Paragraph 11) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by Executive with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by Executive
of all taxes (including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
11.2 All determinations required to be made under this Paragraph 11,
including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be used in arriving at such
determination, shall be made by the tax department of an independent public
accounting firm (the "Accounting Firm") which shall be engaged by the Company
prior to the time of the first Payment to Executive. The Accounting Firm
selected shall not be serving as accountant or auditor for any individual,
13
entity or group effecting a Change in Control. The Accounting Firm shall prepare
and provide detailed supporting calculations both to the Company and Executive
within 15 business days of the later of (i) the Accounting Firm's engagement to
make the required calculations or (ii) the date the Accounting Firm obtains all
information needed to make the required calculation. Any determination by the
Accounting Firm shall be binding upon the Company and Executive. All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
11.3 Any Gross-Up Payment, as determined pursuant to this Paragraph 11,
shall be paid by the Company to Executive within five (5) days of the receipt of
the Accounting Firm's determination if the Payment is then required to satisfy
an assessment or other current demand for payment made of the Executive by
federal or state taxing authorities. Gross-Up Payments due at a later date shall
be paid to the Executive no later than fourteen days prior to the date that the
Executive's federal or state payment is due. If required by law, the Company
shall treat all or any portion of the Gross-Up Payment as being subject to
income tax withholding for federal or state tax purposes. Amounts determined by
the Company to be subject to federal or state tax withholding will not be paid
directly to Executive but shall be timely paid to the respective taxing
authority.
11.4 As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that Executive
hereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
Executive. Conversely, if it is later determined that the actual required
Gross-Up Payment was less than the amount paid to the Executive, the Executive
shall refund the excess portion to the Company but only to the extent that the
Executive has not yet paid the excess amount to the taxing authorities or is
able to obtain a refund from the respective taxing authorities of amounts
previously paid. The Company may pursue at its own expense the refund on behalf
of the Executive.
12. COSTS OF ENFORCEMENT.
---------------------
If either party brings suit to compel performance of, to interpret, or to
recover damages for the breach of this Agreement, the finally prevailing party
shall be entitled to reasonable attorneys' fees in addition to costs and
necessary disbursements otherwise recoverable.
13. PUBLICITY; NO DISPARAGING STATEMENT.
------------------------------------
Executive and the Company covenant and agree that they shall not engage in
any communications which shall disparage one another or interfere with their
existing or prospective business relationships.
14
14. BUSINESS PROTECTION PROVISIONS.
-------------------------------
14.1 Preamble. As a material inducement to the Company to enter into this
Agreement, and its recognition of the valuable experience, knowledge and
proprietary information Executive gained from his employment with the Company,
Executive warrants and agrees he will abide by and adhere to the following
business protection provisions in this Article 14 and all sections thereof.
14.2 Definitions. For purposes of this Article 14 and all sections thereof,
the following terms shall have the following meanings:
(a) "Competitive Position" shall mean any employment, consulting, advisory,
directorship, agency, promotional or independent contractor arrangement between
the Executive and any person or Entity engaged wholly or in material part in the
restaurant or retail business that is the same or similar to that in which the
Company or any of its affiliates (collectively the "CBRL Entities") is engaged
whereby Executive is required to or does perform services on behalf of or for
the benefit of such person or Entity which are substantially similar to the
services in which Executive participated or that he directed or oversaw while
employed by the Company. Without limiting the generality of the foregoing, the
following companies and concepts would be included within those that would be
deemed the same or similar to CBRL Entities and/ or the businesses in which the
CBRL Entities are engaged: Advantica Restaurants, Xxxxxxxx'x International,
Avado Brands, Inc., Xxx Xxxxx Farms, Xxxxxxx International, Cheesecake Factory,
Inc., Xxxxxx Restaurants, Inc., Eateries, Inc., Il Fornaio Corporation,
O'Charley's, Outback Steakhouse, RARE Hospitality and Roadhouse Grill.
(b) "Confidential Information" shall mean the proprietary or confidential
data, information, documents or materials (whether oral, written, electronic or
otherwise) belonging to or pertaining to the CBRL Entities, other than "Trade
Secrets" (as defined below), which is of tangible or intangible value to any of
the CBRL Entities and the details of which are not generally known to the
competitors of the CBRL Entities. Confidential Information shall also include:
any items that any of the CBRL Entities have marked "CONFIDENTIAL" or some
similar designation or are otherwise identified as being confidential.
(c) "Entity" or "Entities" shall mean any business, individual,
partnership, joint venture, agency, governmental agency, body or subdivision,
association, firm, corporation, limited liability company or other entity of any
kind.
(d) "Restricted Period" shall mean two (2) years following termination of
Executive's employment hereunder; provided, however that the Restricted Period
shall be extended for a period of time equal to any period(s) of time within the
two (2) year period following termination of Executive's employment hereunder
that Executive is determined by a final non-appealable judgment from a court of
competent jurisdiction to have engaged in any conduct that violates this Article
14 or any sections thereof, the purpose of this provision being to secure for
the benefit of the Company the entire Restricted Period being bargained for by
the Company for the restrictions upon the Executive's activities.
15
(e) "Territory" shall mean each of the United States of America.
(f) "Trade Secrets" shall mean information or data of or about any of the
CBRL Entities, including, but not limited to, technical or non-technical data,
recipes, formulas, patterns, compilations, programs, devices, methods,
techniques, drawings, processes, financial data, financial plans, product plans
or lists of actual or potential suppliers that: (1) derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; (2) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy; and (3) any other information
which is defined as a "trade secret" under applicable law.
(g) "Work Product" shall mean all tangible work product, property, data,
documentation, "know-how," concepts or plans, inventions, improvements,
techniques and processes relating to the CBRL Entities that were conceived,
discovered, created, written, revised or developed by Executive during the term
of his employment with the Company.
14.3 Nondisclosure; Ownership of Proprietary Property.
(a) In recognition of the need of the CBRL Entities to protect their
legitimate business interests, Confidential Information and Trade Secrets,
Executive hereby covenants and agrees that Executive shall regard and treat
Trade Secrets and all Confidential Information as strictly confidential and
wholly-owned by the CBRL Entities and shall not, for any reason, in any fashion,
either directly or indirectly, use, sell, lend, lease, distribute, license,
give, transfer, assign, show, disclose, disseminate, reproduce, copy,
misappropriate or otherwise communicate any such item or information to any
third party or Entity for any purpose other than in accordance with this
Agreement or as required by applicable law, court order or other legal process:
(i) with regard to each item constituting a Trade Secret, at all times such
information remains a "trade secret" under applicable law, and (ii) with regard
to any Confidential Information, for the Restricted Period.
(b) Executive shall exercise best efforts to ensure the continued
confidentiality of all Trade Secrets and Confidential Information, and he shall
immediately notify the Company of any unauthorized disclosure or use of any
Trade Secrets or Confidential Information of which Executive becomes aware.
Executive shall assist the CBRL Entities, to the extent necessary, in the
protection of or procurement of any intellectual property protection or other
rights in any of the Trade Secrets or Confidential Information.
(c) All Work Product shall be owned exclusively by the CBRL Entities. To
the greatest extent possible, any Work Product shall be deemed to be "work made
for hire" (as defined in the Copyright Act, 17 U.S.C.A. ss. 101 et seq., as
amended), and Executive hereby unconditionally and irrevocably transfers and
assigns to applicable CBRL Entity all right, title and interest Executive
currently has or may have by operation of law or otherwise in or to any Work
Product, including, without limitation, all patents, copyrights, trademarks (and
the goodwill associated therewith), trade secrets, service marks (and the
goodwill associated therewith) and other intellectual property rights. Executive
agrees to execute and deliver to the applicable CBRL Entity any transfers,
16
assignments, documents or other instruments which the Company may deem necessary
or appropriate, from time to time, to protect the rights granted herein or to
vest complete title and ownership of any and all Work Product, and all
associated intellectual property and other rights therein, exclusively in the
applicable CBRL Entity.
14.4 Non-Interference With Executives.
Executive recognizes and acknowledges that, as a result of his employment
by Company, he will become familiar with and acquire knowledge of confidential
information and certain other information regarding the other executives and
employees of the CBRL Entities. Therefore, Executive agrees that, during the
Restricted Period, Executive shall not encourage, solicit or otherwise attempt
to persuade any person in the employment of the CBRL Entities to end his/her
employment with a CBRL Entity or to violate any confidentiality, non-competition
or employment agreement that such person may have with a CBRL Entity or any
policy of any CBRL Entity. Furthermore, neither Executive nor any person acting
in concert with the Executive nor any of Executive's affiliates shall, during
the Restricted Period, employ any person who has been an executive or management
employee of any CBRL Entity unless that person has ceased to be an employee of
the CBRL Entities for at least six (6) months.
14.5 Non-competition
Executive covenants and agrees to not obtain or work in a Competitive
Position within the Territory during the Term or during the Restricted Period;
provided, however, that the restrictions set forth in this Section 14.5 shall
not be applicable following the expiration of the Term as a result of the
Company's notice to Executive, pursuant to Section 2.2.2, that it intends to
allow the Agreement to expire and not be renewed at the next Anniversary Date.
Executive and Company recognize and acknowledge that the scope, area and time
limitations contained in this Agreement are reasonable and are properly required
for the protection of the business interests of Company due to Executive's
status and reputation in the industry and the knowledge to be acquired by
Executive through his association with Company's business and the public's close
identification of Executive with Company and Company with Executive. Further,
Executive acknowledges that his skills are such that he could easily find
alternative, commensurate employment or consulting work in his field that would
not violate any of the provisions of this Agreement. Executive acknowledges and
understands that, as consideration for his execution of this Agreement and his
agreement with the terms of this covenant not to compete, Executive will receive
employment with and other benefits from the Company in accordance with this
Agreement.
14.6 Remedies.
Executive understands and acknowledges that his violation of this Article
14 or any section thereof would cause irreparable harm to Company and Company
would be entitled to an injunction by any court of competent jurisdiction
enjoining and restraining Executive from any employment, service, or other act
prohibited by this Agreement The parties agree that nothing in this Agreement
shall be construed as prohibiting Company from pursuing any remedies available
to it for any breach or threatened breach of this Article 14 or any section
thereof, including, without limitation, the recovery of damages from Executive
or any person or entity acting in concert with Executive. Company shall receive
injunctive relief without the necessity of posting bond or other security, such
bond or other security being hereby waived by Executive. If any part of this
Article 14 or any section thereof is found to be unreasonable, then it may be
amended by appropriate order of a court of competent jurisdiction to the extent
deemed reasonable. Furthermore and in recognition that certain severance
17
payments are being agreed to in reliance upon Executive's compliance with this
Article 14 after termination of his employment, in the event Executive breaches
any of such business protection provisions or other provisions of this
Agreement, any unpaid amounts (e.g., those provided under Paragraphs 8 or
9(a)(2)) shall be forfeited and Company shall not be obligated to make any
further payments or provide any further benefits to Executive following any such
breach. Additionally, if Executive breaches any of such business protection
provisions or other provisions of this Agreement or such provisions are declared
unenforceable by a court of competent jurisdiction, any lump sum payment made
pursuant to Section 10(a)(1)(ii) shall be refunded by the Executive on a
pro-rata basis based upon the number of months during the Restricted Period
during which he violated the provisions of this section or, in the event such
provisions are declared unenforceable, the number of months during the
Restricted Period that the Company did not receive their benefit as a result of
the actions of the Executive.
15. RETURN OF MATERIALS.
--------------------
Upon Executive's termination, or at any point after that time upon the
specific request of the Company, Executive shall return to the Company all
written or descriptive materials of any kind belonging or relating to the
Company or its affiliates, including, without limitation, any originals, copies
and abstracts containing any Work Product, intellectual property, Confidential
Information and Trade Secrets in Executive's possession or control.
16. GENERAL PROVISIONS.
-------------------
16.1 Amendment. This Agreement may be amended or modified only by a writing
signed by both of the parties hereto.
16.2 Binding Agreement. This Agreement shall inure to the benefit of and be
binding upon Executive, his heirs and personal representatives, and the Company
and its successors and assigns.
16.3 Waiver Of Breach; Specific Performance. The waiver of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other breach. Each of the parties to this Agreement will be entitled to enforce
its or his rights under this Agreement, specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in its or his favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its or his sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
16.4 Indemnification and Insurance. The Company shall indemnify and hold
the Executive harmless to the maximum extent permitted by law against judgments,
fines, amounts paid in settlement and reasonable expenses, including reasonable
attorneys' fees incurred by the Executive, in connection with the defense of, or
as a result of any action or proceeding (or any appeal from any action or
18
proceeding) in which the Executive is made or is threatened to be made a party
by reason of the fact that he is or was an officer of the Company or any
affiliate. In addition, the Company agrees that the Executive is and shall
continue to be covered and insured up to the maximum limits provided by all
insurance which the Company maintains to indemnify its directors and officers
(and to indemnify the Company for any obligations which it incurs as a result of
its undertaking to indemnify its officers and directors) and that the Company
will exert its best efforts to maintain such insurance, in not less than its
present limits, in effect throughout the term of the Executive's employment.
16.5 No Effect On Other Arrangements. It is expressly understood and agreed
that the payments made in accordance with this Agreement are in addition to any
other benefits or compensation to which Executive may be entitled or for which
he may be eligible, whether funded or unfunded, by reason of his employment with
the Company. Notwithstanding the foregoing, the provisions in Sections 5 through
10 regarding benefits that the Executive will receive upon his employment being
terminated supersede and are expressly in lieu of any other severance program or
policy that may be offered by the Company, except with regard to any rights the
Executive may have pursuant to COBRA.
16.6 Tax Withholding. There shall be deducted from each payment under this
Agreement the amount of any tax required by any governmental authority to be
withheld and paid over by the Company to such governmental authority for the
account of Executive.
16.7 Notices.
All notices and all other communications provided for herein shall be in
writing and delivered personally to the other designated party, or mailed by
certified or registered mail, return receipt requested, or delivered by a
recognized national overnight courier service, or sent by facsimile, as follows:
If to Company to: CBRL Group, Inc.
Attn: General Counsel's Xxxxxx
X.X. Xxx 000
000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
If to Executive to: Xxxxxxx X. Xxxxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
All notices sent under this Agreement shall be deemed given twenty-four (24)
hours after sent by facsimile or courier, seventy-two (72) hours after sent by
certified or registered mail and when delivered if personal delivery. Either
party hereto may change the address to which notice is to be sent hereunder by
written notice to the other party in accordance with the provisions of this
Paragraph.
19
16.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee (without giving effect to
conflict of laws).
16.9 Entire Agreement. This Agreement contains the full and complete
understanding of the parties hereto with respect to the subject matter contained
herein and this Agreement supersedes and replaces any prior agreement, either
oral or written, which Executive may have with Company that relates generally to
the same subject matter including, as of the Effective Date, the Prior
Agreements.
16.10 Assignment. This Agreement may not be assigned by Executive without
the prior written consent of Company, and any attempted assignment not in
accordance herewith shall be null and void and of no force or effect.
16.11 Severability. If any one or more of the terms, provisions, covenants
or restrictions of this Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, then the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect, and to that end the provisions hereof shall be deemed
severable.
16.12 Paragraph Headings. The Paragraph headings set forth herein are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement whatsoever.
16.13 Interpretation. Should a provision of this Agreement require judicial
interpretation, it is agreed that the judicial body interpreting or construing
the Agreement shall not apply the assumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction that
an instrument is to be construed more strictly against the party which itself or
through its agents prepared the agreement, it being agreed that all parties
and/or their agents have participated in the preparation hereof.
16.14 Mediation. Except as provided in subsection (c) of this Section
16.14, the following provisions shall apply to disputes between Company and
Executive: (i) arising out of or related to this Agreement (including any claim
that any part of this agreement is invalid, illegal or otherwise void or
voidable), or (ii) the employment relationship that exists between Company and
Executive:
(a) The parties shall first use their best efforts to discuss and
negotiate a resolution of the dispute.
(b) If efforts to negotiate a resolution do not succeed within 5
business days after a written request for negotiation has been made, a
party may submit to the dispute to mediation by sending a letter to the
other party requesting mediation. The dispute shall be mediated by a
mediator agreeable to the parties or, if the parties cannot agree, by a
mediator selected by the American Arbitration Association. If the parties
cannot agree to a mediator within 5 business days, either party may submit
20
the dispute to the American Arbitration Association for the appointment of
a mediator. Mediation shall commence within 10 business days after the
mediator has been named.
(c) The provisions of this Section 16.14 shall not apply to any
dispute relating to the ability of the Company to terminate Executive's
employment pursuant to Section 5 or Section 9 of this Agreement nor shall
they apply to any action by the Company seeking to enforce its rights
arising out of or related to the provisions of Article 14 of this
Agreement.
16.15 Voluntary Agreement. Executive and Company represent and agree that
each has reviewed all aspects of this Agreement, has carefully read and fully
understands all provisions of this Agreement, and is voluntarily entering into
this Agreement. Each party represents and agrees that such party has had the
opportunity to review any and all aspects of this Agreement with legal, tax or
other adviser(s) of such party's choice before executing this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their duly
authorized representative to execute, this Agreement as of this 1st day of July,
2005.
CBRL GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------
Xxxxxx X. Xxxx, Chairman
Compensation and Stock Option Committee
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxxx
21
Addendum to Employment
Agreement with Xxxxxxx X. Xxxxxxxxx
RELEASE
THIS RELEASE ("Release") is made and entered into by and between Xxxxxxx X.
Xxxxxxxxx ("Employee") and CBRL GROUP, INC. and its successor or assigns
("Company").
WHEREAS, Employee and Company have agreed that Employee's employment with
CBRL Group, Inc. shall terminate on -------------------;
WHEREAS, Employee and the Company have previously entered into that certain
Employment Agreement, dated _____________, 2005 ("Agreement"), and this Release
is incorporated therein by reference;
WHEREAS, Employee and Company desire to delineate their respective rights,
duties and obligations attendant to such termination and desire to reach an
accord and satisfaction of all claims arising from Employee's employment, and
his termination of employment, with appropriate releases, in accordance with the
Agreement;
WHEREAS, the Company desires to compensate Employee in accordance with the
Agreement for service he has or will provide for the Company;
NOW, THEREFORE, in consideration of the premises and the agreements of the
parties set forth in this Release, and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby covenant and agree as follows:
1. Claims Released Under This Agreement In exchange for receiving the
severance benefits described in Paragraphs 8, 9 or 10 of the Agreement and
except as provided in Paragraph 2 below, Employee hereby voluntarily and
irrevocably waives, releases, dismisses with prejudice, and withdraws all
claims, complaints, suits or demands of any kind whatsoever (whether known or
unknown) which Employee ever had, may have, or now has against Company and other
current or former subsidiaries or affiliates of the Company and their past,
present and future officers, directors, employees, agents, insurers and
attorneys (collectively, the "Releasees"), arising out of or relating to
(directly or indirectly) Employee's employment or the termination of his
employment with the Company, including but not limited to:
(a) claims for violations of Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Fair Labor Standards Act, the Civil
Rights Act of 1991, the Americans With Disabilities Act, the Equal Pay Act, the
Family and Medical Leave Act, 42 U.S.C. ss. 1981, the National Labor Relations
Act, the Labor Management Relations Act, Executive Order 11246, Executive Order
11141, the Rehabilitation Act of 1973, or the Employee Retirement Income
Security Act;
1
(b) claims for violations of any other federal or state statute or
regulation or local ordinance;
(c) claims for lost or unpaid wages, compensation, or benefits, defamation,
intentional or negligent infliction of emotional distress, assault, battery,
wrongful or constructive discharge, negligent hiring, retention or supervision,
misrepresentation, conversion, tortious interference, breach of contract, or
breach of fiduciary duty;
(d) claims to benefits under any bonus, severance, workforce reduction,
early retirement, outplacement, or any other similar type plan sponsored by the
Company; or
(e) any other claims under state law arising in tort or contract.
2. Claims Not Released Under This Agreement In signing this Release,
Employee is not releasing any claims that may arise under the terms of the
Agreement, that enforce his rights under the Agreement, that arise out of events
occurring after the date Employee executes this Release, that arise under any
written non-employment related contractual obligations between the Company or
its affiliates and Employee which have not terminated as of the execution date
of this Release by their express terms, that arise under a policy or policies of
insurance (including director and officer liability insurance) maintained by the
Company or its affiliates on behalf of Employee, or that relate to any
indemnification obligations to Employee under the Company's bylaws, certificate
of incorporation, Tennessee law or otherwise. However, Employee understands and
acknowledges that nothing herein is intended to or shall be construed to require
the Company to institute or continue in effect any particular plan or benefit
sponsored by the Company and the Company hereby reserves the right to amend or
terminate any of its benefit programs at any time in accordance with the
procedures set forth in such plans. Nothing in this Agreement shall prohibit
Employee from engaging in protected activities under applicable law or from
communicating, either voluntarily or otherwise, with any governmental agency
concerning any potential violation of the law.
3. No Assignment of Claim. Employee represents that he has not assigned or
transferred, or purported to assign or transfer, any claims or any portion
thereof or interest therein to any party prior to the date of this Release.
4. Compensation. In accordance with the Agreement, the Company agrees to
pay Employee, or if he becomes eligible for payments under Paragraphs 8, 9 or 10
but dies before receipt thereof, his spouse or his estate, as the case may be,
the amount provided in Paragraphs 8, 9 or 10 of the Agreement.
5. No Admission Of Liability. This Release shall not in any way be
construed as an admission by the Company or Employee of any improper actions or
liability whatsoever as to one another, and each specifically disclaims any
liability to or improper actions against the other or any other person, on the
part of itself or himself, its or his employees or agents.
6. Voluntary Execution. Employee warrants, represents and agrees that he
has been encouraged in writing to seek advice from anyone of his choosing
regarding this Release, including his attorney and accountant or tax advisor
2
prior to his signing it; that this Release represents written notice to do so;
that he has been given the opportunity and sufficient time to seek such advice;
and that he fully understands the meaning and contents of this Release. He
further represents and warrants that he was not coerced, threatened or otherwise
forced to sign this Release, and that his signature appearing hereinafter is
voluntary and genuine. EMPLOYEE UNDERSTANDS THAT HE MAY TAKE UP TO TWENTY-ONE
(21) DAYS TO CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS RELEASE.
7. Ability to Revoke Agreement. EMPLOYEE UNDERSTANDS THAT HE MAY REVOKE
THIS RELEASE BY NOTIFYING THE COMPANY IN WRITING OF SUCH REVOCATION WITHIN SEVEN
(7) DAYS OF HIS EXECUTION OF THIS RELEASE AND THAT THIS RELEASE IS NOT EFFECTIVE
UNTIL THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD. HE UNDERSTANDS THAT UPON THE
EXPIRATION OF SUCH SEVEN (7) DAY PERIOD THIS RELEASE WILL BE BINDING UPON HIM
AND HIS HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS, SUCCESSORS AND
ASSIGNS AND WILL BE IRREVOCABLE.
Acknowledged and Agreed To:
"COMPANY"
CBRL GROUP, INC.
By:______________________________
Its:______________________________
I UNDERSTAND THAT BY SIGNING THIS RELEASE, I AM GIVING UP RIGHTS I MAY HAVE. I
UNDERSTAND THAT I DO NOT HAVE TO SIGN THIS RELEASE.
"EMPLOYEE"
-------------------------
-------------------------------------
Date
Xxxxxxx X. Xxxxxxxxx
3
