CHANGE OF CONTROL SEVERANCE AGREEMENT
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Agreement (the "Agreement") dated as of December 1, 2000 (the
"Effective Date") between Cooker Restaurant Corporation, an Ohio
corporation (the "Company") and Dan Clay (the "Employee").
Preamble
In oder to induce Employee to leave his previous employment and
accept employment with the Company as Executive Vice President and
Chief Operating Officer, the Company has agreed to enter into this
agreement to insure Employee that should the ownership or control of
the Company change significantly, and as a result of such Change of
Control (as defined below), Employee's Employment is Terminated, or
the terms of his employment are significantly changed to his
detriment, Employee shall be entitled to a Severance Payment.
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties to this Agreement agree
as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
Annual Compensation means the average annual base salary
plus cash bonuses paid by the Company to the Employee in the previous
two calendar years, or such lesser period as the Employee has been
employed by the Company.
Cause means: (a) conviction of a felony; or (b) the
continuation, after notice and reasonable opportunity to cure, of any
of the following: (i) a material failure to comply with any business
conduct policy of the Company adopted by the board of directors of the
Company; (ii) any material failure to faithfully perform duties
imposed as an employee of the Company or to comply with the terms of
this Agreement; (iii) a material failure to follow the expressed,
lawful directives of the Board; or (iv) the occurrence of any
Disability.
Change of Control means a change of control of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934 as in effect on the date of this Agreement;
provided that, without limitation, such a change of control shall be
deemed to have occurred if and when (i) any "person" (as such term is
defined in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange
Act of 1934) is or becomes a beneficial owner, directly or indirectly,
of securities of the Company representing 25% or more of the combined
voting power of the Company's then outstanding securities or (ii)
individuals who were members of the board of directors of the Company
immediately prior to a meeting of the shareholders of the Company
involving a contest for the election of directors do not constitute a
majority of the board of directors following such election.
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Disability means inability to perform, taking into account
the Americans with Disabilities Act, duties as a senior executive
officer of the Company by reason of a medically determinable, physical
or mental impairment which has lasted or can be expected to last for a
continuous period of at least six months
Good Cause. Employee shall have Good Cause to terminate
his employment if, in anticipation of or within one year after a
Change of Control: (i) the Company terminates his employment for any
reason other than for Cause ; (ii) the Company makes a significant
change in the nature or significant reduction in the scope of his
authority or duties from those exercised or performed by him prior to
the date on which a Change of Control occurs or otherwise breaches any
provision of this Agreement in any material respect; (iii) he is
required to remove his residence outside of Nashville, Tennessee, or
contiguous counties; (iv) his base compensation or eligibility for
bonuses is reduced; or (iv) he makes a reasonable, good faith
determination that, as a result of a Change of Control and changed
circumstances thereafter significantly affecting his position, he are
unable to exercise the authority or perform the duties of his position
as Executive Vice President and Chief Operating Officer.
Terminating Event shall mean the termination by the Company of
the employment of the Employee for without Cause or the termination by
the Employee of his employment with the Company for Good Cause.
2. Severance Payment. Upon the occurrence of a Terminating
Event on or within one year after the occurrence of a Change of
Control, Employee shall be entitled to receive a severance payment
equal to fifty per cent (50%) of his Annual Compensation.
3. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if
delivered personally or sent by air couner or first class or certified
mail addressed as follows:
If to the Employee: At the address specified at the foot of
this Agreement
If to the Company: Cooker Restaurant Corporation
5500 Village Boulevard
West Palm Beach, FL 33407
Attn: Vice President and Chief
Financial Officer
or to such other address as the party to whom notice is to be given
may have furnished to the other party in writing in accordance
herewith. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of delivery if personally
delivered; on the business day after the date when sent if sent by air
courier; and on the third business day after the date when sent if
sent by mail, in each case addressed to such party as provided in this
Section or in accordance with the latest unrevoked direction from such
party.
4. Governing Law. This Agreement shall be governed by, and
construed in accordance with, (a) the laws of the State of Florida
applicable to contracts made and to be performed wholly therein and
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(b) the laws of the State of Ohio applicable to corporations organized
under the laws of such state.
5. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the transactions
contemplated herein and supersedes all previously written or oral
negotiations, commitments, representations and agreements.
6. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
7. Amendments. This Agreement, or any provisions hereof, may
not be amended, changed or modified without the prior written consent
of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered.
COOKER RESTAURANT CORPORATION
By:/s/Henry R. Hillenmeyer
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Henry R. Hillenmeyer
Chairman and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/Dan Clay
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Signature: Dan Clay
Social Security Number: ###-##-####
[Required] -----------
ADDRESS OF EMPLOYEE:
215 Cantrell Ave
Nashville, TN 37205
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