OSI RESTAURANT PARTNERS, INC. Amendment
Exhibit
10.1
Amendment
THIS
AMENDMENT (this “Amendment”) is made and entered into effective this
5th
day of
November, 2006, by and between ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (“Employee” or “Grantee”) and OSI
RESTAURANT PARTNERS, INC., a Delaware corporation (the
“Company”).
W
I T N E
S S E T H:
WHEREAS,
the Company and Employee are party to an Officer Employment Agreement, effective
as of October 18, 2005 (the “Employment Agreement”); and
WHEREAS,
the Company and Employee are party to the Restricted Stock Agreement set forth
on Exhibit A attached hereto (the “Restricted Stock Agreement”);
and
WHEREAS,
the Company and Employee desire to amend the Employment Agreement and the
Restricted Stock Agreement as set forth herein.
NOW,
THEREFORE, in consideration of the foregoing recitals, and of the premises,
covenants, terms and conditions contained herein, the parties hereto agree
as
follows:
1. Terms
used but not otherwise defined herein shall have the meanings ascribed to them
in the Employment Agreement or the Restricted Stock Agreement.
2. The
Employment Agreement and the Restricted Stock Agreement are hereby amended
to
include the following defined terms having the following meanings:
“Change
of Control” means:
(a)
The
acquisition by any individual, corporation, limited liability company, joint
venture, partnership, trust, unincorporated organization or other legal entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either (i) the then-outstanding shares of common
stock of the Company (the “Outstanding Company Common Stock”) or (ii) the
combined voting power of the then-outstanding voting securities of the Company
entitled to vote generally in the election of directors (the “Outstanding
Company Voting Securities”); provided, however, that, for purposes of this
Agreement, the following acquisitions shall not constitute a Change of Control:
(A) any acquisition directly from the Company, (B) any acquisition by the
Company or (C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any affiliated company;
(b)
Individuals who, as of the date hereof, constitute the Board of Directors of
the
Company (the “Incumbent Board”) cease for any reason to constitute at least a
majority of the Board of Directors of the Company; provided, however, that
any
individual becoming a director subsequent to the date hereof whose election,
or
nomination for election by the Company’s stockholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption
of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the
Board of Directors of the Company;
(c)
Consummation of a reorganization, merger, consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a
“Business Combination”), in each case, unless, immediately following such
Business Combination, (i) all or substantially all of the Persons that were
the
beneficial owners of the Outstanding Company Common Stock and the Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the then-outstanding
common stock and the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of directors, as the
case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation that, as a result of such transaction, owns
the Company or all or substantially all of the Company’s assets either directly
or through one or more subsidiaries) in substantially the same proportions
as
their ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities,
as the case may be and (ii) at least a majority of the members of the board
of
directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board of Directors of the Company providing
for such Business Combination; or
(d)
Approval by the stockholders of the Company of a liquidation or dissolution
of
the Company.
“Good
Reason” means any of the following: (a) the assignment to Employee of any duties
inconsistent in any respect with Employee’s position (including status, offices,
titles, and reporting requirements), authority, duties or responsibilities
as in
effect immediately prior to a Change of Control or any action by the Company
that results in a diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and that is remedied by the Company
promptly after receipt of notice thereof given by Employee, (b) a reduction
by
the Company in Employee’s base salary or benefits as in effect immediately prior
to a Change in Control, unless a similar reduction is made in salary and
benefits of all employees or (c) the Company requires Employee to be based
at or
generally work from any location more than fifty miles from the location at
which Employee was based or generally worked immediately prior to a Change
in
Control.
“Severance
Amount” means, with respect to Employee, an amount equal to (a) two multiplied
by (b) the sum of (i) Employee’s gross annual base salary at the rate in effect
immediately prior to a Change of Control and (ii) an amount equal to the
aggregate cash bonus compensation paid to Employee for the two fiscal years
preceding the year in which a Change of Control occurs divided by two; provided,
however, that if Employee was not employed for the entirety of the two fiscal
years preceding the year in which a Change of Control occurs, the amount used
for purposes of (b)(ii) shall be an amount equal to Employee’s target bonus in
the year in which a Change of Control occurs without dividing by two.
3. Section
8(b) of the Employment Agreement is hereby amended in its entirety to read
as
follows:
“(b) The
Employee’s Disability during the Term of Employment. For purposes of this
Agreement, “Disability” means a permanent and total disability as defined in
Section 22(e)(3) of the Code.”
4. Section
8(c) of the Employment Agreement is hereby amended in its entirety to read
as
follows:
“(c) The
existence of Cause. For purposes of this Agreement, “Cause” means any of the
following: (a) gross neglect of duty or prolonged absence from duty (other
than
any such failure resulting from incapacity due to physical or mental illness)
without the consent of the Company, as determined in good faith by the Board
of
Directors of the Company, (b) conviction or a plea of guilty or nolo contendere
with respect to commission of a felony under federal law or in the law of the
state in which such action occurred or (c) the willful engaging by Employee
in
illegal misconduct or gross misconduct that is materially and demonstrably
injurious to the Company.”
5. Section
9(b) of the Employment Agreement is hereby amended to add the following as
the
last sentence of that Section:
“Notwithstanding
anything to the contrary contained herein, in the event of a separation from
service (as defined in Section 409A of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder (the “Code”)) of the Employee caused by
the Company without Cause or by the Employee for Good Reason within two years
after a Change of Control, the Severance Amount shall be paid in a lump sum
by
the Company upon or immediately following the Employee’s separation from
service; provided, however, that if the Employee is a specified employee of
the
Company (as defined in Section 409A of the Code), the Severance Amount shall
be
paid on the date that is one day after the date that is six months following
such separation from service (or such earlier date that payment of the Severance
Amount can be made without incurring a tax pursuant to Section 409A of the
Code).”
6. Section
20 of the Employment Agreement is hereby amended in its entirety to read as
follows:
“20. Effect
of Termination.
The
termination of this Agreement, for whatever reason, or the expiration of this
Agreement shall not extinguish those obligations of Employee specified
in
Section 10, Section 11, Section 12, Section 13 and
Section
15
hereof
or those obligations of the Company specified in Section
9
and
Section
34
hereof.
The restrictive covenants of Section
10, Section 11, Section 12, Section 13 and
Section
15 shall
survive
the termination or expiration of this Agreement.”
7. The
Employment Agreement is hereby amended to add the following as Section 34
thereof:
“34. Excess
Parachute Tax Gross-Up.
It is
possible that a payment or distribution (including, without limitation, any
distribution or payment with respect to the vesting of any stock options or
restricted stock grants or the vesting of any benefits) to Employee or for
Employee’s benefit (whether paid or payable or distributed or distributable)
pursuant to the terms of this Agreement, a stock option agreement, a restricted
stock agreement or otherwise (a “Payment”) may constitute a “parachute payment”
within the meaning of Section 280G of the Code. The Company acknowledges that
the protections set forth in this Section
34
are
important, and it is agreed that, except as provided in Section 34(a) below,
Employee should not have to bear the burden of any excise tax that might be
levied under Section 4999 of the Code (such excise tax, together with any
interest or penalties incurred by Employee with respect to such excise tax,
being collectively referred to as the “Excise Tax”) as a result of Employee’s
receipt of the amounts or benefits payable to Employee pursuant to this
Agreement, a stock option agreement, a restricted stock agreement or otherwise.
The following shall therefore apply:
(a) If
it is
determined that any Payment is subject to the Excise Tax, then the Company
shall
pay to or on behalf of Employee an additional payment (a “Gross-Up Payment”) in
an amount such that after payment by Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest or penalties imposed with respect
thereto) and Excise Tax, imposed upon the Gross-Up Payment, but excluding any
income taxes and penalties imposed pursuant to Section 409A of the Code,
Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payment. Notwithstanding the foregoing provisions of this
Section 34(a), if it shall be determined that Employee is entitled to the
Gross-Up Payment, but that the Parachute Value (as defined below) of all
Payments does not exceed 110% of the Safe Harbor Amount (as defined below),
then
no Gross-Up Payment shall be made to Employee and the amounts payable under
this
Agreement shall be reduced so that the Parachute Value of all Payments, in
the
aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable
hereunder, if applicable, shall be made by first reducing the Severance Amount,
unless an alternative method of reduction is elected by Employee, and in any
event shall be made in such a manner as to maximize the Value (as defined below)
of all Payments actually made to Employee. For purposes of reducing the Payments
to the Safe Harbor Amount, only amounts payable under this Agreement (and no
other Payments) shall be reduced. If the reduction of the amount payable under
this Agreement would not result in a reduction of the Parachute Value of all
Payments to the Safe Harbor Amount, no amounts payable under the Agreement
shall
be reduced pursuant to this Section 34(a). The foregoing determinations will
be
made by the Company’s tax accountants serving immediately prior to a Change of
Control (the “Accountants”) in consultation with Employee and the Company and in
accordance with the analysis, valuations and calculations prepared by the
Accountants in connection with Section
34(b),
below.
Employee and the Company will each provide the Accountants access to and copies
of any books, records, and documents in the possession of Employee or the
Company, as the case may be, reasonably requested by the Accountants, and
otherwise cooperate with the Accountants in connection with the preparation
and
issuance of the determinations and calculations contemplated by this
Section
34.
(b) The
Company shall cause all determinations required to be made under this
Section
34,
including the assumptions to be utilized in arriving at such determinations,
to
be made by the Accountants, which shall provide Employee and the Company with
their determinations and detailed supporting calculations with respect thereto
at least 15 business days prior to the date on which Employee would be entitled
to receive a Payment (or as soon as practicable in the event that the
Accountants have less than 15 business days advance notice that Employee may
receive a Payment) in order that Employee may determine whether Employee concurs
with such determination. For the purpose of determining whether any of the
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
such Payments will be treated as “parachute payments” within the meaning of
Section 280G of the Code, and all “parachute payments” in excess of the “base
amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as
subject to the Excise Tax, unless and except to the extent that in the opinion
of the Accountants such Payments (in whole or in part) either do not constitute
“parachute payments” or represent reasonable compensation for services actually
rendered (within the meaning of Section 280G(b)(4) of the Code) in excess of
the
“base amount,” or such “parachute payments” are otherwise not subject to such
Excise Tax. Any determination by the Accountants shall be binding upon the
Company and Employee. The amount of any Gross-Up Payment shall be paid in a
lump
sum within seven days following such determination by the Accountants. In the
event that the Accountant’s determination is not finally accepted by the
Internal Revenue Service (the “IRS”), Employee shall notify the Company in
writing of any such claim by the IRS. Such notification shall be given as soon
as practicable after Employee is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date on which any
incremental tax attributable to such claim is requested to be paid. In
connection with any claim or potential contest of such claim, Employee and
the
Company will provide each other access to and copies of any books, records,
and
documents in the possession of Employee or the Company, as the case may be,
reasonably requested by the other party, and will otherwise cooperate with
each
other in connection with any such claim. In the event that Employee or the
Company contest such claim, the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest. Upon resolution of any such claim, an appropriate
adjustment, including penalties and interest, if any, shall be computed (with
an
additional Gross-Up Payment, if applicable) by the Accountants based upon the
final amount of the Excise Tax so determined. Such adjustment shall be paid
by
the appropriate party in a lump sum within seven days following the computation
of such adjustment by the Accountants. Nothing contained in this Section
34
shall
limit Employee’s ability or entitlement to settle or contest as the case may be,
any claim or issue asserted by the IRS. All fees and expenses of the Accountants
incurred pursuant to this Section
34
and all
costs associated with such claims by the IRS or any other taxing authority
shall
be borne solely by the Company.”
(c) The
following terms shall have the following meanings for purposes of this Section
34.
(i) “Parachute
Value” of a Payment shall mean the present value as of the date of the change of
control for purposes of Section 280G of the Code of the portion of such Payment
that constitutes a “parachute payment” under Section 280G(b)(2), as determined
by the Accountants for purposes of determining whether and to what extent the
Excise Tax will apply to such Payment.
(ii) The
“Safe
Harbor Amount” means 2.99 times the Employee’s “base amount,” within the meaning
of Section 280G(b)(3) of the Code.
(iii) “Value”
of a Payment shall mean the economic present value of a Payment as of the date
of the change of control for purposes of Section 280G of the Code, as determined
by the Accountants using the discount rate required by Section 280G(d)(4) of
the
Code.
Notwithstanding
any other provision of this Section 33, the Company may, in its sole discretion,
withhold and pay over to the Internal Revenue Service or any other applicable
taxing authority, for the benefit of Employee, all or any portion of any
Gross-Up Payment, and Employee hereby consents to such withholding.
8. Section
2
of the Restricted Stock Agreement is hereby amended to add the following as
subsection (d) thereof:
“(d) Notwithstanding
anything to the contrary contained herein, the Restricted Stock shall become
fully vested and all restrictions on the Restricted Stock shall lapse if within
two years after the effective date of a Change of Control (a) Grantee’s
employment is terminated by the Company without Cause, (b) Grantee resigns
for
Good Reason or (c) Grantee dies or suffers a Disability. For purposes of this
Agreement, the defined terms used in the foregoing sentence shall have the
meanings given to them under the Grantee’s employment agreement with the Company
as amended.”
9. Section
5
of the Restricted Stock Agreement is hereby amended in its entirety to read
as
follows:
“Section
5. Termination
of Employment.
Except
as otherwise provided in paragraph (c) or (d) of Section 2 hereof, if the
Grantee does not remain employed by the Company in the position of Chief
Financial Officer (or higher) through the Final Vesting Date, all shares of
Restricted Stock not vested as of the date Grantee is no longer employed by
the
Company in the position of Chief Financial Officer (or higher) will be
forfeited.”
10. This
Amendment may be executed in counterparts, each of which will constitute an
original and all of which together will constitute one agreement. The signature
page of any individual or entity, or copies or facsimiles thereof, may be
appended to any counterpart of this Amendment and when so appended will
constitute an original.
11. Except
as
expressly amended by this Amendment, all terms and conditions of the Employment
Agreement and the Incentive Compensations Agreements remain in full force and
effect and are unmodified hereby.
[signature
page follows]
IN
WITNESS WHEREOF, the parties have executed or caused this Amendment to be
executed as of the day and year first above written.
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
Vice
President
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
EXHIBIT
A
Restricted
Stock Agreement, effective as of October 18, 2005, between the Company and
Grantee
23120,
91001, 101378147.1