UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of
Report (date of earliest event reported): September 17,
2007
CBRL
GROUP, INC.
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Tennessee
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0-25225
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62-1749513
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(State
or Other Jurisdiction
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(Commission
File Number)
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(I.R.S.
Employer
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of
Incorporation)
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Identification
No.)
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305
Hartmann Drive, Lebanon, Tennessee 37087
(615)
444-5533
Check
the
appropriate box if the Form 8-K filing is intended to simultaneously satisfy
the
filing obligation of the registrant under any of the following
provisions:
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
Item
5.02. Departure of Directors or Principal Officers; Election of
Directors; Appointment of Principal Officers.
On
September 17, 2007, CBRL Group,
Inc. (the “Company”) and Lawrence E. White entered into an Agreement dated as of
September 17, 2007 (the “White Agreement”) pursuant to which Mr. White will
retire and resign, effective as of February 1, 2008 (the “Employment Termination
Date”), as Senior Vice President and Chief Financial Officer of the
Company. The following summary of the material terms of the White
Agreement is qualified in its entirety by reference to the full text of the
White Agreement, a copy of which is attached to this Current Report on Form
8-K
as Exhibit 99.1 and incorporated by reference into this Item. The
White Agreement provides that (1) for a period of time from the Employment
Termination Date through August 15, 2009 (the “Consulting Term”), Mr. White will
serve as a consultant to the Company, for which the Company will pay to Mr.
White $619,437 in the aggregate over the Consulting Term; (2) any bonus earned
under the CBRL FY2008 Annual Bonus Plan and any award that might be earned
under
the CBRL Long Term Performance Plan will be prorated through the Employment
Termination Date; (3) through the Consulting Term: (a) additional options to
purchase 8,900 shares of CBRL common stock will vest and become exercisable,
(b)
15,000 restricted shares of CBRL common stock will vest on August 2, 2009 and
will be distributed, along with any accrued dividends, (c) 3,934 restricted
shares of CBRL common stock will vest on August 1, 2008 and will be distributed,
along with any accrued dividends, and (d) 7,618 restricted shares of CBRL common
stock will vest on July 31, 2009 and will be distributed, along with any accrued
dividends; and (4) the Company will continue to provide all group health and
life insurance benefits for Mr. White and his dependents at the same level
as
for other senior level executives of the Company until the earlier of the end
of
the Consulting Term or Mr. White’s obtaining other employment at which he
receives health insurance benefits.
The
White Agreement also contains
non-disparagement, non-competition, non-solicitation and confidentiality
provisions as well as a standstill agreement by Mr. White. Upon the
Employment Termination Date, Mr. White is also to execute and deliver a release
of all claims that he might have against the Company.
Item
7.01. Regulation FD Disclosure.
The
information set forth in Item 5.02
above is incorporated by reference as if fully set forth herein.
On
September 20, 2007, the Company
issued the press release that is furnished as Exhibit 99.2 to this Current
Report on Form 8-K and that is incorporated by reference into this Item
announcing that its Board of Directors had declared a quarterly dividend of
$0.18 per share payable on November 5, 2007 to shareholders of record on October
19, 2007 and also had authorized the repurchase of up to 1,000,000 shares of
the
Company’s outstanding shares of common stock.
Item
9.01. Financial Statements and Exhibits.
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(d)
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Exhibits.
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See
Exhibit Index immediately following signature page.
SIGNATURE
Pursuant
to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report
to
be signed on its behalf by the undersigned hereunto duly
authorized.
| Dated: September 20, 2007 | CBRL GROUP, INC. | |
| By: | /s/ N.B. Forrest Shoaf | |
| Name: | N.B. Forrest Shoaf | |
| Title: | Senior Vice President, Secretary and General Counsel | |
EXHIBIT
INDEX
Exhibit
No. Description
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99.1
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Agreement
dated September 17, 2007 between the Company and Lawrence E.
White
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99.2
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Press
Release issued by CBRL Group, Inc. dated September 20, 2007 re: dividend
and share repurchase
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Exhibit
99.1
RETIREMENT
AGREEMENT
THIS
AGREEMENT (the "Agreement") is made as of this 17th day of
September, 2007 by and between LAWRENCE E. WHITE, a natural person resident
in
Williamson County, TN and his heirs, assigns, executors, agents and
representatives (the “Executive”) on the one side, and CBRL Group, Inc.
(together with its subsidiaries and affiliates hereinafter referred to
as
“CBRL”) on the other;
W
I T N E S S E T H:
WHEREAS,
Executive has
been employed as the Senior Vice President and Chief Financial Officer
of CBRL;
and
WHEREAS,
Executive is
eligible to retire and receive benefits under various compensation programs
of
CBRL; and
WHEREAS,
the Executive has indicated his desire to retire and to leave all positions
with
CBRL, effective February 1, 2008 (the “Employment Termination Date”);
and
WHEREAS,
CBRL wishes
to secure Executive's continuing services for a period of time and to provide
certain other benefits to Executive in view of his long service to CBRL
and its
subsidiaries; and
WHEREAS,
Executive and
CBRL are parties to that certain Change in Control Agreement (the "Retention
Agreement"), dated as of October 13, 1999; and
WHEREAS,
it is the
desire of CBRL and the Executive to set forth herein their mutual agreement
with
respect to all matters relating to (i) the Executive’s retirement and
resignation as an officer of CBRL; (ii) the termination of the Retention
Agreement; (iii) the terms under which Executive will act as a consultant
to
CBRL following the Employment Termination Date; and (iv) the Executive’s release
of claims, all upon the terms set forth herein;
NOW,
THEREFORE, for
and in consideration of the mutual covenants and promises contained herein,
the
parties hereby agree as follows:
1. Termination
of Employment and Retention Agreement. The Executive hereby
resigns, effective as of the Employment Termination Date, as Senior Vice
President and Chief Financial Officer of CBRL and from all other positions
with
CBRL and its affiliates. The Executive’s employment with CBRL will
continue until the close of business on the Employment Termination Date,
at
which time his employment with CBRL shall terminate. The Retention
Agreement shall terminate on the Employment Termination Date and neither
CBRL
nor the Executive shall have any further rights or obligations
thereunder. Following the Employment Termination Date, the respective
rights and obligations of the parties shall be governed by the terms of
this
Agreement; provided, however, that notwithstanding the foregoing, in
the event Executive,
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prior
to
the Employment Termination Date becomes eligible for benefits pursuant
to
Section 3 of the Retention Agreement, then this Agreement shall not become
effective and Executive shall receive only the benefits provided by the
Retention Agreement.
2. Consulting;
Cooperation. For a period from the Employment Termination Date
through and including August 15, 2009 (or such earlier date if CBRL terminates
the consulting relationship as set forth below; the “Consulting Term”) CBRL and
Executive agree that he will serve as a consultant to CBRL on special projects
as requested by CBRL in all matters related to his prior employment as
an
officer with CBRL. Executive shall provide up to ten (10) days per
month during the first two (2) months of the Consulting Term and five (5)
days
per month thereafter of consultation/meetings with respect to such matters;
any
period of more than four (4) hours to count as one (1) day. These
time requirements are non-cumulative and shall be reasonably convenient
to
Executive's schedule, as determined in good faith by Executive. If
Executive is requested to provide more consultation/meetings than the time
specified during any month of the Consulting Term, Executive may agree
to do so
upon such terms as the parties agree; however, Executive shall have no
obligation in this regard. If Executive fails or refuses to provide
the consulting services provided in this Section 2, CBRL may terminate
the
consulting arrangement; provided, however, that notwithstanding the
forgoing, CBRL shall not be entitled to terminate the consulting arrangement:
(a) if such failure is due to the death or disability of the Executive;
or (b)
in any situation other than death or disability, unless CBRL shall
first have given Executive five (5) business days prior notice (which notice
shall describe the failure or refusal of Executive) and Executive shall
not cure
such failure or refusal during said five (5) business day period.
3. Payments
and Benefits. Provided that the Executive has executed and
delivered to CBRL on or about the Employment Termination Date, and has
not
revoked, the general release referred to in Section 9 hereof (the “Release”),
CBRL shall make the payments and provide the benefits set forth in this
Section
3.
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(a)
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Subject
to early termination or acceleration pursuant to Section 10,
CBRL will pay
Executive the sum of Six Hundred Nineteen Thousand Four Hundred
Thirty-Seven and 00/100 Dollars ($619,437.00) less applicable
deductions
required by law, which shall be payable at the rate of: (i) Twenty
Thousand Six Hundred Forty-seven and 92/100 Dollars ($20,647.92),
semi-monthly, for twelve (12) consecutive months and (ii) following
such
twelve-month period, Ten Thousand Three Hundred Twenty-three
and 96/100
Dollars ($10,323.96), semi-monthly, for six (6) consecutive months,
in
accordance with CBRL’s regular payroll policies. In the event
of the death or disability of Executive, the foregoing payment
will be
made to Executive's estate, heirs, or conservator, as
applicable. CBRL will have the right to deduct from
compensation payable to Executive under this Agreement, social
security
taxes, and all federal, state, and municipal taxes and charges
as may now
be in effect and that may be enacted or required after the effective
date
of this Agreement as charges on the compensation of
Executive. CBRL will be responsible for the payment of any
employer
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matching
amounts of such taxes.
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(b)
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As
of the Employment Termination Date, Executive will have vested
options to
purchase One Hundred Fifteen Thousand Six Hundred Fifty-one (115,651)
shares of CBRL common stock (the “Vested Options”). In
addition, except as otherwise provided in Section 10: (i) additional
options to purchase Eight Thousand Nine Hundred (8,900) shares
of CBRL
common stock (the “Potential Options") shall vest and become exercisable
on dates during the Consulting Term; (ii) Fifteen Thousand (15,000)
restricted shares of CBRL common stock (the “Retention Shares”) awarded
under CBRL’s 2002 Omnibus Incentive Compensation Plan (the “Omnibus Plan”)
will vest on August 2, 2009 and will be distributed (along with
any
accrued dividends) to Executive pursuant to the terms of that
grant, (iii)
Three Thousand Nine Hundred Thirty Four (3,934) restricted shares
of CBRL
common stock (the “2006 MTIRP Shares”) awarded under CBRL’s 2006 Long Term
Incentive Plan (the “2006 Plan”) will vest on August 1, 2008 and will be
distributed (along with any accrued dividends) to Executive pursuant
to
the terms of the 2006 Plan; and (iv) the Seven Thousand Six Hundred
Eighteen (7,618) restricted shares of CBRL common stock restricted
shares
that are to be awarded under the 2007 Long Term Incentive Plan
(the “2007
Plan”) and are scheduled to vest on July 31, 2009 (the “2007 MTIRP
Shares”) will be distributed (along with any accrued dividends) to
Executive pursuant to the terms of the 2007 Plan; (the 2006 MTIRP
Shares
and the 2007 MTIRP Shares are referred to collectively hereafter
as the
“MTIRP Shares”). The Vested Options and any Potential Options
that vest during the Consulting Term may be exercised prior to
their
respective dates of expiration. Executive hereby relinquishes
any right to exercise any rights or options that he has to acquire
or
purchase CBRL common stock other than the Vested Options, the
Retention
Shares, the MTIRP Shares and any Potential Options that vest
during the
Consulting Term and specifically relinquishes the October 12,
2006 grant
of 25,000 restricted shares of CBRL common stock as well as options
to
purchase Eight Hundred Thirty-three (833) shares of CBRL common
stock that
would vest on September 21, 2009. The terms and provisions of
this Agreement shall supersede and control over any of the terms
and
provisions of any agreement between Executive and CBRL with respect
to any
rights to receive or options to purchase CBRL’s common
stock.
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(c)
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Until
the earlier of: (i) the end of the Consulting Term or (ii) Executive's
obtaining other employment at which he receives health insurance
benefits
irrespective of their scope and coverage, CBRL, subject to Executive's
payment of contributions applicable to plan participants, shall
continue
to provide all group health and life insurance benefits for Executive
and
his dependents at the same level as for other CBRL senior level
executives. Afterwards, CBRL will have no obligation to provide
further life insurance benefits, but upon payment of the appropriate
premiums,
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Executive
will have the right to continue his participation in CBRL's group health
coverage plan under the applicable COBRA regulations. Executive shall
not be entitled to any other benefits as a consultant to
CBRL.
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(d)
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Executive
will be paid any bonus earned under the CBRL FY2008 Annual Bonus
Plan and
any award that might be earned under the CBRL 2008 Long Term
Performance
Plan in accordance with the terms of that plan prorating, for
the purposes
of service under either plan, Executive’s Employment through the
Employment Termination Date. Executive’s service as a
consultant pursuant to Section 2 of this Agreement shall not
count in the
determination of any employment or service requirement for an
award under
those plans.
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(e)
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CBRL
shall reimburse Executive for his reasonable out-of-pocket expenses
in
connection with his activities and the services that he is requested
to
perform under Section 2; provided that the request for reimbursement
of
such expenses is accompanied by documentation satisfactory to
CBRL and,
provided further, that any expense in excess of $500.00 must
be approved
in advance in writing by CBRL.
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(f)
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CBRL
shall deduct from the amounts payable to the Executive pursuant
to this
Agreement the amount of all required federal, state and local
withholding
taxes in accordance with the Executive’s Form W-4 on file with CBRL, and
all applicable federal employment
taxes.
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4. Application
of Code Section 409A. CBRL shall report all payments and other
benefits paid or provided pursuant to Section 2 and Section 3 of this Agreement
to the extent required by, and in accordance with, Section 409A (“Section 409A”)
of the Internal Revenue Code of 1986, as amended (the “Code”). In the
event that CBRL or the Executive reasonably and in good faith determines
that
any payment to be made or benefit to be provided to the Executive hereunder
would result in the application of Section 409A, CBRL shall, in consultation
with the Executive, modify the Agreement to the extent possible and in
the least
restrictive manner reasonably available in order to exclude such compensation
from the definition of “deferred compensation” within the meaning of such
Section 409A or in order to comply with the provisions of Section 409A
and/or
any rules, regulations or other regulatory guidance issued under such statutory
provision and without any diminution in the value of the payments to the
Executive. Notwithstanding
the foregoing, under no circumstance shall CBRL be responsible for any
taxes,
penalties, interest or other losses or expenses incurred by the Executive
due to
any failure to comply with Section 409A, or for any interest on account of
any delay in payment deemed necessary to comply with
Section 409A.
5. Acknowledgment. Executive
agrees that none of CBRL or any of its predecessors, successors (by merger
or
otherwise), parents, subsidiaries, affiliated entities, divisions and assigns,
together with each and every of their present, past and future officers,
directors, shareholders, general partners, limited partners, employees
and
agents and the heirs and executors of same (herein collectively referred
to as
the
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“Company
Group”) has breached any oral or written contract that may have existed between
Executive and CBRL or any member of the Company Group with respect to his
employment or termination of employment nor has any of CBRL or any member
of the
Company Group, violated any law, statute, rule regulation or ordinance
of any
governmental authority relating to Executive’s employment. Executive
acknowledges that the payments and other consideration paid hereunder can
not
and shall not be construed as any admission of liability or wrongdoing
on the
part of either CBRL or any member of the Company Group. Executive
further acknowledges and agrees that the payments and other benefits being
received by him pursuant to this Agreement satisfy any claim that he might
have
had under the Retention Agreement or any other CBRL policy or
practice. Executive understands that the release provided for in this
Agreement extends to all of the aforementioned claims and potential claims
which
arose on or before the date of the execution of this Agreement and that
may
arise on or before the Employment Termination Date, whether now known or
unknown, suspected or unsuspected, and his participation as a member of
any
class asserting any such claims, and that this acknowledgement and release
constitute essential terms of this Agreement. Executive
understands and acknowledges the significance and consequence of this Agreement
and of each specific release and waiver, and expressly consents that this
Agreement shall be given full force and effect according to each and all
of its
express terms and provisions, including those relating to unknown and
unsuspected claims, demands, obligations, and causes of action, if any,
as well
as those relating to any other claims, demands, obligations or causes of
action
herein above-specified.
6. Reinstatement. Executive
hereby waives any right or claim he may have to employment, re-instatement,
re-assignment or re-employment with CBRL or the Company Group other than
the
consulting arrangement described and set forth in Section 2 of this
Agreement. Executive acknowledges and agrees that he has no right to
be retained beyond the Consulting Term and CBRL is retaining him for a
discreet
and limited engagement. Executive's acknowledgement and agreement as
to these matters are material inducements for CBRL's making certain other
of its
agreements including, without limitation, the payments in Section
3.
7. Publicity;
No Disparaging Statements.
7.1. Executive
agrees that he shall not make or authorize any disparaging communications
with
respect to CBRL, any member of the Company Group or any of their respective
officers, directors or employees, past or present. To the extent that
the foregoing prohibition might be applicable, it is not intended to prevent
Executive from giving testimony pursuant to compulsory process of
law. In determining what constitutes “compulsory process of law,”
Executive may rely on advice of counsel of his choice and his
expense.
7.2. At
any time following the Employment Termination Date, CBRL shall not make
any
disparaging statements, announcements or disclosures, except as may be
required
by law, of any information detrimental to Executive. The
determination whether any disclosure is required by law shall be made by
CBRL
in
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its
sole discretion.
8. Business
Protection Provisions.
8.1 Preamble. As
a material inducement to CBRL to enter into this Agreement, and its recognition
of the valuable experience, knowledge and proprietary information Executive
gained from his employment with CBRL, Executive warrants and agrees he
will
abide by and adhere to the following business protection provisions in
this
Section 8 and all sub-sections thereof.
8.2 Definitions.
For purposes of this Section 8 and all sub-sections thereof, the following
terms
shall have the following meanings:
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(a)
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"Competitive
Position" shall mean any employment, consulting, advisory, directorship,
agency, promotional or independent contractor arrangement between
Executive and any person or Entity engaged, wholly or in material
part, or
that is an investor or prospective investor in an Entity that
is engaged
wholly or in material part in the restaurant business that is
the same or
similar to that in which CBRL or any of CBRL’s subsidiaries or affiliates
(collectively the "CBRL Entities") is engaged, at the Employment
Termination Date, 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 CBRL. For
purposes of this Agreement, a "restaurant business that is the
same or
similar" means Entities engaged in a business in the family or
casual
dining sector of the full-service restaurant industry with breakfast
service seven days a week. Without limiting the generality of
the foregoing, and whether included in the foregoing definition
of
"restaurant business that is the same or similar," 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: Applebee's International, Brinker International,
IHOP, Avado Brands, Inc., Bob Evans Farms, Darden Restaurants,
Inc.,
Denny’s, Eateries, Inc., First Watch, Huddle House, O'Charley's, Outback
Steakhouse, Perkins, RARE Hospitality, Shoney’s and Waffle House (such
list being referred to hereinafter as the “Specified
Competitors”).
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(b)
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"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
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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, at the time disclosed to
executive.
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(c)
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"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.
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(d)
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"Restricted
Period" shall mean: (i) except with respect to the Specified
Competitors, the twenty-four (24) month period following the
Employment Termination Date; and (ii) with respect to the Specified
Competitors, the thirty-six (36) month period following the Employment
Termination Date; provided, however that the Restricted Period
shall be
extended for a period of time equal to any period(s) of time
within the
twenty-four (24) or thirty-six (36) month period (whichever is
applicable)
following the Employment Termination Date 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 Section 8 or any
sub-sections thereof, the purpose of this provision being to
secure for
the benefit of CBRL the entire Restricted Period being bargained
for by
CBRL for the restrictions upon Executive's
activities.
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(e)
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"Territory"
shall mean each of the United States of
America.
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(f)
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"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 (e.g.,
advertising or promotional schedules), 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.
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(g)
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"Work
Product" shall mean all tangible work product (e.g., menus,
advertising materials), property, data, documentation, "know-how,"
concepts or plans, inventions, improvements, techniques and
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8.3 Nondisclosure;
Ownership of Proprietary Property.
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(a)
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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 never, 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.
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(b)
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Executive
shall exercise best efforts to ensure the continued confidentiality
of all
Trade Secrets and Confidential Information, and he shall immediately
notify CBRL 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
reasonably necessary and at the sole expense of the CBRL Entities,
in the
protection of or procurement of any intellectual property protection
or
other rights in any of the Trade Secrets or Confidential
Information.
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(c)
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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. §§ 101 et seq., as amended), and Executive hereby
unconditionally and irrevocably transfers and assigns to the
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, assignments, documents
or other
instruments which CBRL 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.
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(d)
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Executive
also recognizes that all writings, illustrations, drawings and
other
similar materials which embody or otherwise contain Trade Secrets,
Confidential Information or Work Product that any CBRL Entity
may have
produced during his employment or which may have been given to
Executive
in connection with his employment are the property of CBRL, and
it is
Executive's obligation to immediately return any such materials
to
CBRL.
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8.4 Non-Interference
With Executives; Non-solicitation of Employees. Executive recognizes
and acknowledges that, as a result of his employment by CBRL, he has become
familiar with and has acquired knowledge of confidential information and
certain
other information regarding the other executives and employees of the CBRL
Entities. Therefore, Executive agrees that, during the thirty-six
(36) month period (the “Non-solicitation Period”) following the Employment
Termination Date, 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 Executive (and with Executive’s knowledge) shall,
during the Non-solicitation Period, employ any person who has been employee
(above unit-level manager) of any CBRL Entity unless that person has ceased
to
be an employee of the CBRL Entities for at least six (6)
months. Executive also shall not communicate in any manner
whatsoever, whether directly or indirectly, with any executive employee
of a
CBRL Entity on the topic of the individual's employment with a CBRL Entity,
his
or her plans for employment in the future, or his or her employment with
any
other entity, other than to say Executive is unable to engage in any such
discussions. Executive may request that the restrictions set forth in
this Section 8.4 be waived as to any employee whose employment has been
involuntarily terminated by CBRL; provided, however, that the decision
whether to waive such restriction shall be in CBRL’s sole discretion and shall
not be binding upon CBRL unless such waiver is evidenced by a written agreement
that has been executed and delivered by, and is legally binding on, CBRL
and the
Executive, which, if agreed to by CBRL, may also include terms and conditions
that CBRL in its sole discretion are reasonably necessary under the
circumstances.
8.5 Non-competition. Executive
covenants and agrees to not obtain or work in a Competitive Position within
the
Territory during the applicable Restricted Period. In the event that
the Executive is uncertain as to whether any arrangement or proposed arrangement
with any Entity would constitute a prohibited Competitive Position, the
Executive shall notify CBRL in writing of such arrangement or proposed
arrangement, and CBRL shall, within thirty (30) days following its receipt
of
such notice, advise the Executive in writing as to whether such arrangement
or
proposed arrangement would constitute a prohibited
-9-
8.6 Standstill. Executive
covenants and agrees that, during the Non-solicitation Period, he will
not in
any manner (i) acquire, agree to acquire, or make any proposal (or request
permission to make any proposal) to acquire any securities (or direct or
indirect rights, warrants, or options to acquire any securities) or property
(including the stock or assets of any of CBRL’s subsidiaries) of CBRL (other
than property transferred in the ordinary course of CBRL's business), unless
such acquisition, agreement, or making of a proposal shall have been expressly
first approved by (or in the case of a proposal, expressly first invited
by)
CBRL's Board of Directors, (ii) solicit proxies from CBRL’s shareholders or
otherwise seek to influence or control the management or policies of CBRL
or any
of its affiliates or subsidiaries, or (iii) assist (including by knowingly
providing or arranging financing for that purpose) any other person or
Entity in
doing any of the foregoing. The Executive will not have violated or
be deemed to have violated this Section 8.6 solely as a result of (i) the
Executive’s investment in capital stock or other securities of CBRL if listed on
a national securities exchange or actively traded in the over-the-counter
market
if the Executive, the members of the Executive’s immediate family and their
respective affiliates and associates together do not, directly or indirectly,
hold more than two percent of all such shares of capital stock or other
securities issued and outstanding.
8.7 Executive
and CBRL 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 CBRL due to Executive's status
and
reputation in the industry and the knowledge to be acquired by Executive
through
his association with CBRL’s business and the public's close identification of
Executive with CBRL. 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
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9. Release. On
the Employment Termination Date, the Executive and CBRL will execute and
deliver
a General Release in the form attached hereto as Attachment A.
10. Remedies;
Indemnification of Executive.
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(a)
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Executive
understands and acknowledges that his violation of Section 7.1
or Section
8 or any sub-section thereof would cause irreparable harm to
CBRL and CBRL
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 CBRL
from
pursuing any remedies available to it for any breach or threatened
breach
of Section 7.1 or Section 8 or any sub-section thereof, including,
without
limitation, the recovery of actual damages from Executive or
any person or
entity acting in concert with Executive. CBRL 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 Section 7.1 or Section 8 or any
sub-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
provisions in this Agreement are being agreed to by CBRL in reliance
upon
Executive's compliance with Sections 7.1 and 8, in the event
of a breach
by Executive of any of the provisions of Section 7.1 or Section
8 or any
sub-sections thereof, damages to CBRL would be difficult to determine
and,
in the event of such breach by Executive, the Consulting Term
shall
immediately terminate without any action on the part of CBRL
and: (a) CBRL
shall be released from its obligation to make any further payments
or
provide benefits to Executive under Section 3 hereof; (b) CBRL
shall be
released from its obligations under Section 7.2 hereof, and (c)
the MTIRP
Shares, the Retention Shares and the Potential Options shall
cease to vest
as of the date of such breach, and the unvested portion thereof
shall be
immediately forfeited and thereafter not be distributed to Executive,
in
the case of the MTIRP Shares or the Retention Shares, or exercisable
by
Executive, in the case of the Potential Options. If either CBRL
or Executive brings suit to compel performance of, to interpret,
or to
recover damages for the breach of this Agreement, the prevailing
party in
such litigation shall be entitled to recover its reasonable attorneys’
fees in addition to costs and necessary disbursements otherwise
recoverable. Additionally, if Executive breaches any of the
provisions of Section 8, any payment made or benefit provided
pursuant to
Section 3 as well as the value of any Potential Options, Retention
Shares
and MTIRP Shares that are received by Executive shall be disgorged
to CBRL
by Executive on a pro-rata basis based upon the
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-11-
number
of
months during the Restricted Period during which he violated the provisions
of
Section 8.
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(b)
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In
recognition that certain provisions in this Agreement are being
agreed to
by Executive in reliance upon CBRL’s compliance with Sections 3 and 7.2,
in the event of a breach by CBRL of any of the provisions of
Section 3 or
any subsections thereof or Section 7.2, Executive will be entitled,
at his
option, to: (i) a release from his obligations to provide further
consulting services under Section 2; (ii) a release from his
obligations
and restrictions provided for in Section 8; (iii) accelerate
the payment
of all amounts under Section 3(a); and (iv) to the extent
provided for in the Omnibus Plan, the 2006 Plan, and 2007 Plan,
accelerate
the receipt of and immediately vest any then unvested Potential
Options,
Retention Shares, 2006 MTIRP Shares and 2007 MTIRP Shares that
would have
vested during the Consulting Term; provided, however, that
notwithstanding the forgoing, Executive shall not be entitled
to the
releases set forth in subsections (i) and (ii) above or the acceleration
of awards set forth in subsections (iii) and (iv) unless
Executive shall first have given CBRL five (5) days prior notice
(which
notice shall describe the breach of CBRL) and CBRL shall not
cure such
breach during said five (5) day period. The foregoing remedies
are in
addition to and not in lieu of any other contractual, legal,
or equitable
remedies that may be available to Executive. If either
Executive or CBRL brings suit to compel performance of, to interpret,
or
to recover damages for the breach of this Agreement, the prevailing
party
in such litigation shall be entitled to recover its reasonable
attorneys’
fees in addition to costs and necessary disbursements otherwise
recoverable.
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(c)
|
CBRL
shall defend, hold harmless and indemnify Executive in any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal,
administrative or investigative, by reason of the fact that he
is or was a
consultant of CBRL during all or any portion of the Consulting
Term or
provided services to CBRL against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably
incurred by him in connection with such action, suit or proceeding,
if he
acted in good faith and in a manner he reasonably believed to
be in or not
opposed to the best interests of CBRL and, with respect to any
criminal
action or proceeding, had no reasonable cause to believe his
conduct was
unlawful. Notwithstanding the preceding sentence, no indemnity
shall be paid by CBRL: (i) in connection with any proceeding
by or in the
right of CBRL in which Executive is adjudged liable to CBRL;
(ii) if a
final judgment or other final adjudication by a court having
jurisdiction
in the matter shall determine that such indemnity is not lawful;
or (iii)
in connection with any proceeding charging improper personal
benefit to
Executive if a final judgment or other final adjudication by
a court
having jurisdiction in the matter shall determine that such personal
benefit was
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-12-
improper.
11. Successors. This
Agreement shall inure to the benefit of and be enforceable by the Executive
and
by the Executive’s personal or legal representatives, executors and
administrators and by CBRL and its successors and assigns. In the
event of the death or disability of the Executive while any amounts are
payable
to the Executive hereunder, all such amounts, unless otherwise provided
herein,
shall be paid in accordance with the terms of this Agreement to such person
or
persons designated in writing by the Executive to receive such amounts
or, if no
person is so designated, to the Executive’s estate or personal representative,
as the case may be. The effect of the death or disability of the
Executive on the Potential Options, the Retention Shares, the 2006 MTIRP
Shares
and the 2007 MTIRP Shares shall be determined by reference to the terms
of the
applicable plans and agreements for those matters including, without limitation,
the Omnibus Plan, the 2006 Plan and the 2007 Plan.
12. No
Admissions. Neither the execution of this Agreement by CBRL nor
the terms hereof constitutes an admission by CBRL, or by any agent or employee
of CBRL or the Company Group, of liability or unlawful conduct in any
manner.
13. Entire
Agreement. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof, and shall be binding
upon
their respective heirs, executors, administrators, successors and
assigns.
14. Severability. If
any term or provision of this Agreement shall be held to be invalid or
unenforceable for any reason, then such term or provision shall be ineffective
to the extent of such invalidity or unenforceability without invalidating
the
remaining terms or provisions hereof, and such term or provision shall
be deemed
modified to the extent necessary to make it enforceable.
15. Advice
of Counsel. Executive represents and warrants:
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(a)
|
That
he has carefully read this Agreement, and understands its contents,
meaning and intent; and
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(b)
|
That,
understanding this document, he has freely and voluntarily executed
it
with the advice of counsel aforesaid, without compulsion, coercion
or
duress.
|
16. Amendments. Neither
this Agreement nor any term hereof may be orally changed, waived, discharged,
or
terminated, and may be amended only by a written agreement signed by both
of the
parties hereto.
17. Governing
Law. This Agreement shall be governed by the laws of the State of
Tennessee without regard to the conflict of law principles of any
jurisdiction.
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18. Legally
Binding. The terms of this Agreement contained herein are
contractual and not mere recitals.
IN
WITNESS WHEREOF, the parties acknowledging that they are acting of
their own free will have voluntarily caused the execution of this Agreement
as
of this day and year written below.
EXECUTIVE
ACKNOWLEDGES THAT HE HAS READ
THIS AGREEMENT, UNDERSTANDS IT, AND IS VOLUNTARILY ENTERING INTO
IT.
PLEASE
READ THIS AGREEMENT
CAREFULLY. IT CONTAINS A RELEASE OF ANY AND ALL KNOWN AND UNKNOWN
CLAIMS.
| /s/ Lawrence E. White | |
| LAWRENCE E. WHITE | |
| Date: | September 17, 2007 |
| CBRL GROUP, INC. | |
| By: | /s/ Michael A. Woodhouse |
| Title: | President and Chief Executive Officer |
| Date: | September 17, 2007 |
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ATTACHMENT
A
GENERAL
RELEASE
CBRL
Group, Inc., a Tennessee corporation (“CBRL”), and Lawrence E.
White (the “Executive”) enter into this Release (this “Release”) on the 1st
day of February, 2008.
WITNESSETH
WHEREAS,
CBRL and the Executive are parties to an Agreement dated as of September
17,
2007 (the “Retirement Agreement”);
WHEREAS,
as a condition to the receipt of certain benefits to be paid following
the date
of this Release (the “Benefits”) under the Retirement Agreement and in
consideration for the execution and delivery of this Release by CBRL, the
Executive has agreed to execute and deliver this Release; and
WHEREAS,
in consideration for the agreements and covenants of the Executive contained
in
the Retirement Agreement and the execution and delivery of this Release
by the
Executive, CBRL has agreed to execute and deliver this Release.
NOW
THEREFORE, in consideration of the covenants and mutual promises herein
contained, it is agreed as follows:
1. The
Executive, on behalf of the Executive and anyone claiming through the Executive,
hereby agrees not to sue CBRL or any of its divisions, subsidiaries, affiliates
or other related entities of the above specified entities (whether or not
such
entities are wholly owned) or any of the past, present or future directors,
officers, administrators, trustees, fiduciaries, employees, agents or attorneys
of CBRL or any of such other entities, or the predecessors, successors
or
assigns of any of them (hereinafter referred to as the “Released Parties”), and
hereby releases and discharges, fully, finally and forever, the Released
Parties
from any and all claims, causes of action, lawsuits, liabilities, debts,
accounts, covenants, contracts, controversies, agreements, promises, sums
of
money, damages, judgments and demands of any nature whatsoever, in law
or in
equity, both known and unknown, asserted or not asserted, foreseen or
unforeseen, which the Executive ever had or may presently have against
any of
the Released Parties arising from the beginning of time up to and including
the
date on which this Release is signed and delivered to CBRL, including,
without
limitation, all matters in any way related to the Executive’s employment by
CBRL, the terms and conditions thereof, the Retention Agreement (as such
term is
defined in the Retirement Agreement), any failure to promote the Executive
and
the termination or cessation of the Executive’s employment with CBRL, and
including, without limitation, any and all claims arising under the Civil
Rights
Act of 1964, as amended, the Civil Rights Act of 1991, the Civil Rights
Act of
1866, the Age Discrimination in Employment Act of 1967, as amended, the
Older
Workers’ Benefit Protection Act of 1990, the Family and Medical Leave Act, the
Americans With Disabilities Act, the Employee Retirement Income Security
Act of
1974, the Tennessee Human Rights Act, the Tennessee Employment of the
Handicapped Act or any other federal, state, local or foreign
A-1
2. The
Executive expressly represents and warrants that he is the sole owner of
the
actual and alleged claims, demands, rights, causes of action and other
matters
that are released herein, that the same have not been transferred or assigned
or
caused to be transferred or assigned to any other person, firm, corporation
or
other legal entity, and that he has the full right and power to grant,
execute
and deliver the general release, undertakings and agreements contained
herein.
3. THE
EXECUTIVE SPECIFICALLY WAIVES AND RELEASES THE RELEASED PARTIES FROM ALL
CLAIMS
THE EXECUTIVE MAY HAVE AS OF THE DATE THE EXECUTIVE SIGNS THIS RELEASE
REGARDING
CLAIMS OR RIGHTS ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT
OF 1967,
AS AMENDED, 29 U.S.C. § 621 (“ADEA”). THE EXECUTIVE FURTHER AGREES:
(A) THAT THE EXECUTIVE’S WAIVER OF RIGHTS UNDER THIS RELEASE IS KNOWING AND
VOLUNTARY AND IN COMPLIANCE WITH THE OLDER WORKER’S BENEFIT PROTECTION ACT OF
1990; (B) THAT THE EXECUTIVE UNDERSTANDS THE TERMS OF THIS RELEASE; (C)
THAT
CERTAIN BENEFITS CALLED FOR IN THE RETIREMENT AGREEMENT TO BE PAID FOLLOWING
THE
DATE OF THIS RELEASE WOULD NOT BE PROVIDED TO ANY EXECUTIVE TERMINATING
HIS OR
HER EMPLOYMENT WITH CBRL WHO DID NOT SIGN A RELEASE SIMILAR TO THIS RELEASE,
THAT SUCH BENEFITS WOULD NOT HAVE BEEN PROVIDED IN THEIR ENTIRETY HAD THE
EXECUTIVE NOT SIGNED THIS RELEASE, AND THAT SUCH BENEFITS ARE IN EXCHANGE
IN
PART FOR THE SIGNING OF THIS RELEASE; (D) THAT THE EXECUTIVE HAS BEEN ADVISED
IN
WRITING BY CBRL TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS RELEASE;
(E)
THAT CBRL HAS GIVEN THE EXECUTIVE A PERIOD OF AT LEAST TWENTY-ONE (21)
DAYS
WITHIN WHICH TO CONSIDER THIS RELEASE; (F) THAT THE EXECUTIVE REALIZES
THAT
FOLLOWING THE EXECUTIVE’S EXECUTION OF THIS RELEASE, THE EXECUTIVE HAS SEVEN (7)
DAYS IN WHICH TO REVOKE THIS RELEASE BY WRITTEN NOTICE TO THE UNDERSIGNED,
AND
(G) THAT THIS RELEASE SHALL BE VOID AND OF NO FORCE AND EFFECT IF THE EXECUTIVE
CHOOSES TO SO REVOKE, AND IF THE
A-2
EXECUTIVE
CHOOSES NOT TO SO REVOKE, THAT THIS RELEASE THEN BECOMES
EFFECTIVE AND ENFORCEABLE.
4. CBRL
hereby releases the Executive from any and all claims, demands or causes
of
action of any kind that it now has or hereafter may have against the Executive
arising out of or related to the Executive’s employment or association with
CBRL, with the exception of claims, demands or causes of action arising
out of
or related to criminal acts, fraud or knowing wrongful conduct, that arise
out
of or relate to any occurrences prior to the date of this Release;
provided, however, that nothing contained in this Release shall
apply to, or release the Executive from, any obligation contained in the
Retirement Agreement or this Release.
5. The
Retirement Agreement and this Release constitute the entire agreement and
understanding between the parties. The Executive has not relied on
any oral statements that are not expressly stated in the Retirement Agreement
or
this Release.
6. This
Release shall be governed by, and construed and enforced in accordance
with, the
internal laws of the State of Tennessee without regard to the principle
of
conflicts of laws.
| EXECUTIVE |
| CBRL GROUP, INC. |
| Michael A. Woodhouse |
|
Chief
Executive Officer
|
A-3
Exhibit
99.2
| [CBRL GROUP, INC. LOGO] |
POST
OFFICE BOX 787
|
|
LEBANON,
TENNESSEE
|
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|
37088-0787
|
|
Investor
Contact:
|
Diana S. Wynne
|
| Senior Vice President, Corporate Affairs | |
| (615) 443-9837 | |
| Media Contact: | Julie K. Davis |
| Director Corporate Communications | |
| (615) 443-9266 | |
CBRL
GROUP, INC. ANNOUNCES 29% INCREASE IN QUARTERLY DIVIDEND
BOARD
AUTHORIZES REPURCHASE OF UP TO 1 MILLION SHARES
LEBANON,
Tenn. -- September 20, 2007 -- CBRL Group, Inc.
(Nasdaq: CBRL) today announced that its Board of Directors has increased
the
Company’s quarterly dividend by 29%, declaring a regular quarterly dividend of
$0.18 per share, an increase from the previous quarterly dividend of $0.14
per
share. The dividend is payable on November 5, 2007 to shareholders of record
on
October 19, 2007.
The
Company also announced today that its Board of Directors has approved a stock
repurchase program for up to 1,000,000 shares of its outstanding shares of
common stock. There is no expiration date on the repurchase authorization
and
repurchases may be made from time to time through open market purchases at
management’s discretion, including through implementation of share repurchase
plans pursuant to Rule 10b5-1 as promulgated by the Securities and Exchange
Commission.
Headquartered
in Lebanon, Tennessee, CBRL Group, Inc. presently operates 564 Cracker Barrel
Old Country Store® restaurants and gift shops located in 41 states.
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