CBRL GROUP, INC. LOGO] Post Office Box 787
Exhibit
10(v)
| [CBRL GROUP, INC. LOGO] |
Post
Office Box 787
|
|
Lebanon,
Tennessee 37088
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|
|
Phone
000.000.0000
|
|
|
Fax
000.000.0000
|
|
|
xxxxxxxxx.xxx
|
August
14, 2006
GII
Xxxxxx
X.
Xxxxx
000
Xxxxxxx Xxxxx
Hermitage,
TN 37076
Re: Employee
Retention Agreement
Dear
Xxx:
The
Board of Directors of the CBRL
Group, Inc. recognizes the contribution that you have made to CBRL Group, Inc.
or one of its direct or indirect subsidiaries (collectively, the "Company")
and
wishes to ensure your continuing commitment to the Company and its business
operations. Accordingly, in exchange for your continuing commitment
to the Company, and your energetic focus on continually improving operations,
the Company promises you the following benefits if your employment with the
Company is terminated in certain circumstances:
1. DEFINITIONS. As
used in this Agreement, the following terms have the following meanings which
are equally applicable to both the singular and plural forms of the terms
defined:
1.1 "Cause"
means any one of the following:
(a) personal
dishonesty;
(b) willful
misconduct;
(c) breach
of fiduciary duty; or
(d) conviction
of any felony or crime involving moral turpitude.
1.2 "Change
in Control" means: (a) that after the date of this Agreement, a
person becomes the beneficial owner, directly or indirectly, of securities
of
the Company representing 20% or more of the combined voting power of the
Company's then outstanding voting securities, unless that acquisition was
approved by a vote of at least 2/3 of the directors in office immediately prior
to the acquisition; (b) that during any period of 2 consecutive years following
the date of this Agreement, individuals who at the beginning of the period
constitute members of the Board of Directors of the Company cease for any reason
to constitute a majority of the Board unless the election, or the nomination
for
election by the Company's shareholders, of each new director was approved by
a
vote of at least 2/3 of the directors then still in office who were directors
at
the beginning of the 2-year period; (c) a merger, consolidation or
reorganization of the Company (but this provision does not apply to a
recapitalization or similar financial restructuring which does not involve
a
material change in ownership of equity of the Company and which does not result
in a change in membership of the Board of Directors); or (d) a sale of all
or
substantially all of the
Company’s
assets.
1.3 "Change
in Control Period" means a 2-year year period
beginning the day after a Change in Control occurs.
1.4 "Change
in Duties or Compensation" means any one of: (a) a
material change in your duties and responsibilities for the Company (without
your consent) from those duties and responsibilities for the Company in effect
at the time a Change in Control occurs, which change results in the assignment
of duties and responsibilities inferior to your duties and responsibilities
at
the time such Change in Control occurs (it being understood and acknowledged
by
you that a Change in Control that results in two persons of which you are one
having similar or sharing duties and responsibilities shall not be a material
change in your duties and responsibilities); (b) a reduction in your salary
or a
material change in benefits (excluding discretionary bonuses), from the salary
and benefits in effect at the time a Change in Control occurs; or (c) a change
in the location of your work assignment from your location at the time a Change
in Control occurs to any other city or geographical location that is located
further than 50 miles from that location.
2. TERMINATION
OF EMPLOYMENT; SEVERANCE. Your
immediate supervisor or the Company's Board of Directors may terminate your
employment, with or without cause, at any time by giving you written notice
of
your termination, such termination of employment to be effective on the date
specified in the notice. You also may terminate your employment with
the Company at any time. The effective date of termination (the
"Effective Date") shall be the last day of your employment with the Company,
as
specified in a notice by you, or if you are terminated by the Company, the
date
that is specified by the Company in its notice to you. The following
subsections set forth your rights to severance in the event of the termination
of your employment in certain circumstances by either the Company or you.
Section 5 also sets forth certain restrictions on your activities if your
employment with the Company is terminated, whether by the Company or
you. That section shall survive any termination of this Agreement or
your employment with the Company.
2.1 Termination
by the Company for Cause. If you are
terminated for Cause, the Company shall have no further obligation to you,
and
your participation in all of the Company's benefit plans and programs shall
cease as of the Effective Date. In the event of a termination for
Cause, you shall not be entitled to receive severance benefits described in
Section 3.
2.2 Termination
by the Company Without Cause Other Than During a Change in Control
Period. If your employment with the
Company is terminated by the Company without Cause at a time other than during
a
Change in Control Period, you shall be entitled to only those severance benefits
provided by the Company's severance policy or policies then in
effect. You shall not be entitled to receive benefits pursuant to
Section 3 of this Agreement.
2.3 Termination
by the Company Without Cause During a Change in Control
Period. If your employment with the
Company is terminated by the Company without Cause
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during
a
Change in Control Period, you shall be entitled to receive Benefits pursuant
to
Section 3. A termination within 90 days prior to a Change in Control which
occurs solely in order to make you ineligible for the benefits of this Agreement
shall be considered a termination without Cause during a Change in Control
Period.
2.4 Termination
By You For Change in Duties or Compensation During a Change in Control
Period. If during a Change in Control
Period there occurs a Change in Duties or Compensation you may terminate your
employment with the Company at any time within 30 days after the occurrence
of
the Change in Duties or Compensation, by giving to the Company not less than
120
nor more than 180 days notice of termination. During the notice
period that you continue to work, any reduction in your Compensation will be
restored. At the option of the Company, following receipt of this
notice, it may: (a) change or cure, within 15 days, the condition that you
claim
has caused the Change in Duties or Compensation, in which case, your rights
to
terminate your employment with the Company pursuant to this Section 2.4 shall
cease (unless there occurs thereafter another Change in Duties or Compensation)
and you shall continue in the employment of the Company notwithstanding the
notice that you have given; (b) allow you to continue your employment through
the date that you have specified in your notice; or (c) immediately terminate
your employment pursuant to Section 2.3. If you terminate your
employment with the Company pursuant to this Section 2.4, you shall be entitled
to receive Benefits pursuant to Section 3. Your failure to provide
the notice required by this Section 2.4 shall result in you having no right
to
receive any further compensation from the Company except for any base salary
or
vacation earned but not paid, plus any bonus earned and accrued by the Company
through the Effective Date.
3. SEVERANCE
BENEFITS. If your employment with the
Company is terminated as described in Section 2.3 or 2.4, you shall be entitled
to the benefits specified in subsections 3.1, 3.2, and 3.3 (the "Benefits")
for
the period of time set forth in the applicable section.
3.1 Salary
Payment or Continuance. You will be
paid a single lump sum payment in an amount equal to 2.00 times the average
of
your annual base salary and any bonus payments for the 3 years immediately
preceding the Effective Date. The determination of the amount of this
payment shall be made by the Company's actuaries and benefit consultants and,
absent manifest error, shall be final, binding and conclusive upon you and
the
Company.
3.2 Continuation
of Benefits. During the 2 years
following the Effective Date (the “Severance Period”) that results in benefits
under this Article 3, you shall continue to receive the medical, prescription,
dental, employee life and group life insurance benefits at the levels to which
you were entitled on the day preceding the Effective Date, or reasonably
equivalent benefits, to the extent continuation is not prohibited or limited
by
applicable law. In no event shall substitute plans, practices,
policies and programs provide you with benefits which are less favorable, in
the
aggregate, than the most favorable of those plans, practices, policies and
programs in effect for other active employees who are similarly situated to
the
position / responsibilities you held immediately preceding the
Effective Date. However, if you become re-employed with another
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employer
and are eligible to receive medical or other welfare benefits under another
employer-provided plan, Company payments for these medical and other welfare
benefits shall cease.
4. EFFECT
OF TERMINATION ON STOCK OPTIONS AND RESTRICTED
STOCK. In the event of any termination of your
employment, all stock options and restricted stock held by you that are vested
prior to the Effective Date shall be owned or exercisable in accordance with
their terms; all stock options held by you that are not vested prior to the
Effective Date shall lapse and be void; however, if your employment with the
Company is terminated as described in Sections 2.3 or 2.4, then, if your option
or restricted stock grants provide for immediate vesting in the event of a
Change in Control, the terms of your option or restricted stock agreement shall
control. If your option or restricted stock agreement does not
provide for immediate vesting, you shall receive, within 30 days
after the Effective Date, a lump sum cash distribution equal to: (a) the number
of shares of the Company's ordinary shares that are subject to options or
restricted stock grants held by you that are not vested as of the Effective
Date
multiplied by (b) the difference between: (i) the closing price of a share
of
the Company's ordinary shares on the NASDAQ National Market System as reported
by The Wall Street Journal as of the day prior to the Effective Date (or, if
the
market is closed on that date, on the last preceding date on which the market
was open for trading), and (ii) the applicable exercise prices or stock grant
values of those non-vested shares.
5. DISCLOSURE
OF INFORMATION. You recognize and
acknowledge that, as a result of your employment by the Company, you have or
will become familiar with and acquire knowledge of confidential information
and
certain trade secrets that are valuable, special, and unique assets of the
Company. You agree that all that confidential information and trade
secrets are the property of the Company. Therefore, you agree that,
for and during your employment with the Company and continuing following the
termination of your employment for any reason, all confidential information
and
trade secrets shall be considered to be proprietary to the Company and kept
as
the private records of the Company and will not be divulged to any firm,
individual, or institution, or used to the detriment of the
Company. The parties agree that nothing in this Section 6 shall be
construed as prohibiting the Company from pursuing any remedies available to
it
for any breach or threatened breach of this Section 6, including, without
limitation, the recovery of damages from you or any person or entity acting
in
concert with you.
6. GENERAL
PROVISIONS.
6.1 Other
Plans. Nothing in this Agreement shall
affect your rights during your employment to receive increases in compensation,
responsibilities or duties or to participate in and receive benefits from any
pension plan, benefit plan or profit sharing plans except plans which
specifically address benefits of the type addressed in Sections 3 and 4 of
this
Agreement.
6.2 Death
During Severance Period. If you die during the
Severance Period, any Benefits remaining to be paid to you shall be paid to
the
beneficiary designated by you to receive those Benefits (or in the absence
of
designation, to your surviving spouse or next of kin).
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6.3 Notices.
Any notices to be given under this Agreement may be effected by personal
delivery in writing or by mail, registered or certified, postage prepaid with
return receipt requested. Mailed notices shall be addressed to the
parties at the addresses appearing on the first page of this Agreement (to
the
attention of the Secretary in the case of notices to the Company), but each
party may change the delivery address by written notice in accordance with
this
Section 7.3. Notices delivered personally shall be deemed
communicated as of actual receipt; mailed notices shall be deemed communicated
as of the second day following deposit in the United States Mail.
6.4 Entire
Agreement. This Agreement supersedes all previous
oral or written agreements, understandings or arrangements between the Company
and you regarding a termination of your employment with the Company or a change
in your status, scope or authority and the salary, benefits or other
compensation that you receive from the Company as a result of the termination
of
your employment with the Company (the "Subject Matter"), all of which are wholly
terminated and canceled. This Agreement contains all of the covenants
and agreements between the parties with respect to the Subject Matter. Each
party to this Agreement acknowledges that no representations, inducements,
promises, or agreements, orally or otherwise, have been made with respect to
the
Subject Matter by any party, or anyone acting on behalf of any party, which
are
not embodied in this Agreement. Any subsequent agreement relating to
the Subject Matter or any modification of this Agreement will be effective
only
if it is in writing signed by the party against whom enforcement of the
modification is sought.
6.5 Partial
Invalidity. If any provision in this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable,
the remaining provisions shall nevertheless continue in full force without
being
impaired or invalidated in any way.
6.6 Governing
Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Tennessee, and
it
shall be enforced or challenged only in the courts of the State of
Tennessee.
6.7 Waiver
of Jury Trial. The Company and you
expressly waive any right to a trial by jury in any action or proceeding to
enforce or defend any rights under this Agreement, and agree that any such
action or proceeding shall be tried before a court and not a jury. You
irrevocably waive, to the fullest extent permitted by law, any objection that
you may have now or hereafter to the specified venue of any such action or
proceeding and any claim that any such action or proceeding has been brought
in
an inconvenient forum.
6.8 Miscellaneous.
Failure or delay of either party to insist upon compliance with any
provision of this Agreement will not operate as and is not to be construed
to be
a waiver or amendment of the provision or the right of the aggrieved party
to
insist upon compliance with the provision or to take remedial steps to recover
damages or other relief for noncompliance. Any express waiver of any
provision of this Agreement will not operate, and is not to be construed, as
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a
waiver
of any subsequent breach, irrespective of whether occurring under similar or
dissimilar circumstances. You may not assign any of your rights under this
Agreement. The rights and obligations of the Company under this
Agreement shall benefit and bind the successors and assigns of the
Company. The Company agrees that if it assigns this Agreement to any
successor company, it will ensure that its terms are continued.
6.9 Certain
Additional Payments by the Company.
a. The
Company will pay you an amount (the “Additional Amount”) equal to the excise tax
under the United States Internal Revenue Code of 1986, as amended (the “Code”),
if any, incurred by you by reason of the payments under this Agreement and
any
other plan, agreement or understanding between you and the Company or its
parent, subsidiaries or affiliates (collectively, “Separation Payments”)
constituting excess parachute payments under Section 280G of the Code (or any
successor provision). In addition, the Company will pay an amount
equal to all excise taxes and federal, state and local income taxes incurred
by
you with respect to receipt of the Additional Amount. All
determinations required to be made under this Section 6.9 including whether
an
Additional Amount is required and the amount of any Additional Amount, will
be
made by the independent auditors engaged by the Company immediately prior to
the
Change in Control (the “Accounting Firm”), which will provide detailed
supporting calculations to the Company and you. In computing taxes,
the Accounting Firm will use the highest marginal federal, state and local
income tax rates applicable to you and will assume the full deductibility of
state and local income taxes for purposes of computing federal income tax
liability, unless you demonstrate that you will not in fact be entitled to
such
a deduction for the year of payment.
b. The
Additional Amount, computed assuming that all of the Separation Payments
constitute excess parachute payments as defined in Section 280G of the Code
(or
any successor provision), will be paid to you at the time that the payments
made
pursuant to Section 3.1 is made unless the Company, prior to the Severance
Period, provides you with an opinion of the Accounting Firm that you will not
incur an excise tax on part or all of the Separation Payments. That
opinion will be based upon the applicable regulations under Sections 280G and
4999 of the Code (or any successor provisions) or substantial authority within
the meaning of Section 6662 of the Code. If that opinion applies only
to part of the Separation Payments, the Company will pay you the Additional
Amount with respect to the part of the Separation Payments not covered by the
opinion.
c. The
amount of the Additional Amount and the assumptions to be utilized in arriving
at the determination, shall be made by the Company’s Accounting Firm, whose
decision shall be final and binding upon both you and the
Company. You must notify the Company in writing no later than 30 days
after you are informed of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the Additional
Amount. You must also cooperate fully with the Company and give the
Company any information reasonably requested relating to the claim, and take
all
action in connection with
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If
all of the terms and conditions in
this Agreement are agreed to by you, please signify your agreement by executing
the enclosed duplicate of this letter and returning it to us. At the date of
your return, this letter shall constitute a fully enforceable Agreement between
us.
| CBRL GROUP, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chairman, President & Chief Executive Officer | ||
The
foregoing is fully agreed to and accepted by:
Date:
August 23, 2006
Employee's
Signature: /s/
Xxxxxx X. Xxxxx
Please
Print or Type Name: Xxxxxx X. Xxxxx
Please
Print or Type Title: Sr. V.P. Human Resources
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