Employee Severance Agreement - Ayman Sabi



 






Exhibit 10.22




EMPLOYEE SEVERANCE AGREEMENT




     This EMPLOYEE SEVERANCE AGREEMENT (“Agreement”) is entered into by and between Roadhouse
Grill, Inc., a Florida corporation (“Company”) and Ayman Sabi (“Employee”) as of the 8th day of
August, 2005 (“Effective Date”).



     WHEREAS, Employee is currently employed as the President and Chief Executive Officer of the
Company; and



     WHEREAS, Company desires to provide Employee with an incentive to remain with the Company if
concerns arise over a possible change in control.



     NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the
parties hereto agree as follows:




	 	1.	 	Effect of Termination; Participation in Compensation Plan.






	 	a.	 	Termination of Employee Employment. If the Employee
is terminated without Cause (as defined in Section 2 below) or if the Employee
resigns for any reason, within 12 months after a Change of Control (as defined
in Section 2 below), then: (i) the Company shall pay to Employee an amount
equal to 1.5 times his current salary (currently $324,455 per annum, including
housing costs of $60,000 and Company required retirement plan contributions of
$33,898), 2/3 of which shall be paid on the date that is three (3) business
days after the date of Employee’s termination from the Company and the balance
of which shall be paid over the six month period following the Employee’s
termination when and as the same would have been due and payable to Employee
but for such termination, (ii) all health benefits in which Employee was
entitled to participate at any time during the 12 month period prior to the
date of termination shall continue to be provided to Employee until the
earliest to occur of 24 months after the date of termination, the Employee’s
death or the date on which Employee becomes covered by a comparable health
benefits plan of a subsequent employer; provided, however, that if Employee’s
continued participation in any health benefit plan of the Company is
prohibited, the Company will arrange to provide Employee with benefits
substantially similar to those which Employee would have been entitled to
receive under such plan for such period on a basis which provides Employee
with no additional after tax cost, (iii) the Company shall pay Employee for
any unused vacation time that has been earned for all full and partial years
of employment; (iv) all Company stock option grants, restricted stock grants
or other equity grants held by Employee at the date of termination will
immediately




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	 	 	 	vest and such securities, to the extent they are options to purchase equity of
the Company, will remain exercisable for the lesser of the unexpired term of
the option without regard to the termination of Employee’s employment or
twenty-four (24) months from the date of termination of employment, (v) the
Company shall pay all termination charges with respect to the transfer of
Employee’s funds to his SERP Plan (collectively, the “Special Termination
Payments”), and (vi) the Company shall continue to provide Employee with a
leased vehicle for twenty-four (24) months following the employment termination
date. Notwithstanding the foregoing, if a Change of Control occurs in
connection with a transaction in which the Company’s shareholders are being
paid consideration in return for their shares (whether such transaction is a
sale of more than a majority of the Company’s outstanding shares, a merger of
the Company with or into another company in which the existing shareholders of
the Company receive cash in exchange for their shares, or a sale of all or
substantially all of the Company’s assets and a subsequent liquidation of the
Company in which the Company’s shareholders receive a liquidating distribution
in return for their shares), then the total due under (i) above shall be paid
in full within three days after Employee’s termination from the Company.
Further, if in connection with such transaction the net cash payment made or to
be made to the Company’s shareholders is not less than $0.80 per share, then
the multiplier used to calculate the payment required under (i) above shall
increase from 1.5 times to 2.0 times.
	 
	 	b.	 	The Employee shall be designated as a participant in the
Company’s 2005 Special Incentive Compensation Plan.






	 	2.	 	Definitions.






	 	a.	 	Change in Control. For purposes of this Agreement, a
“Change in Control” shall be deemed to have occurred as of the first day that
any one or more of these conditions shall have been satisfied:






	 	i.	 	any “person” (as such term is defined
in sections 13(d)(3) and 14(d)(3) of the Exchange Act), other than
the Company, any majority owned subsidiary of the Company, any
compensation plan of the Company, any majority owned subsidiary of
the Company, or Berjaya Group (Cayman) Limited or any subsidiary
thereof, becomes the “beneficial owner” (as defined in Rule 13d-3
of the Exchange Act), directly or indirectly, of securities of the
Company representing more than 30% of the combined voting power of
the Company; or
	 
	 	ii.	 	if, during the Term (as defined below)
of this Agreement, one or more directors are appointed or elected
to the Company’s Board of Directors (“Board”) and any of such new
directors are




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	 	 	 	not either: (a) appointed to the Board by a vote that includes the
affirmative vote approving such director nominee of at least 75% of
the directors who are serving on the Board as of the date of this
Agreement, or (b) elected to the Board by a vote (or action by written
consent) of the requisite percentage of shareholders required to elect
such nominees for election to the Board under circumstances where the
slate of nominees that is elected to the Board is affirmatively
proposed for election to the Board by the affirmative vote of at least
75% of the directors who are serving on the Board at the date of this
Agreement, or
	 
	 	iii.	 	the shareholders of the Company approve
(1) a reorganization, merger, or consolidation with respect to
which persons who were the shareholders of the Company immediately
prior to such reorganization, merger, or consolidation do not
immediately thereafter own more than 30% of the combined voting
power entitled to vote generally in the election of the directors
of the reorganized, merged or consolidated entity; (2) a
liquidation or dissolution of the Company; or (3) the sale of all
or substantially all the assets of the Company or of a subsidiary
of the Company that accounts for more than 66 2/3% of the
consolidated revenues of the Company, but not including a
reorganization, merger, or consolidation of the Company.
Notwithstanding the foregoing, the term “Change in Control” shall
not include any reorganization or liquidation that occurs under the
Bankruptcy Code.






	 	b.	 	Termination Without Cause. A termination without
Cause shall be defined as a termination of Employee’s employment with the
Company in a situation which is not deemed a termination for Cause. For
purposes of this Agreement, Cause shall be defined to mean (i) Employee’s
conduct that would constitute under federal or state law either a felony or a
misdemeanor involving moral turpitude, or a determination by the Board, after
consideration of all available information and following the procedures set
forth below, that Employee has willfully violated Company policies or
procedures involving discrimination, harassment, alcohol or substance abuse,
or work place violence causing material injury to the Company, (ii) Employee’s
actions or omissions that constitute fraud, dishonesty or gross misconduct,
(iii) Employee’s knowing and intentional breach of any fiduciary duty that
causes material injury to the Company, or (iv) Employee’s inability to perform
his material duties, after reasonable notice and an opportunity to resolve the
issues, due to alcohol or other substance abuse. Notice of any termination for
Cause shall be given to the Employee in writing and shall set forth in detail
all acts or omissions upon which the Company is relying to terminate




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	 	 	 	the Employee for Cause. Further, upon a determination by the Company that Cause
exists to terminate the Employee, the Company shall cause a special meeting of
the Board to be called and held at a time mutually convenient to the Board and
Employee, but in no event later than ten (10) business days after Employee’s
receipt of the notice that the Company intends to terminate the Employee for
Cause. Employee shall have the right to appear before such special meeting of
the Board with legal counsel of his choosing to refute such allegations and
shall have a reasonable period of time to cure any actions or omissions which
provide the Company with a basis to terminate the Employee for Cause (provided
that such cure period shall not exceed 30 days). A majority of the members of
the Board must affirm that Cause exists to terminate the Employee. No finding
by the Board will prevent the Employee from contesting such determination
through appropriate legal proceedings provided that the Employee’s sole remedy
shall be to sue for damages, not reinstatement, and damages shall be limited to
those that would be paid to the Employee if he had been terminated without
Cause. In the event the Company terminates the Employee for Cause, the Company
shall only be obligated to continue to pay in the ordinary and normal course of
its business to the Employee his current Salary plus any other earned but
unpaid compensation, including unpaid bonuses, plus accrued but unused vacation
time through the termination date and the Company shall have no further
obligations to Employee from and after the date of termination.





     3. Confidentiality; Non-Competition. In the event that Employee’s employment is
terminated pursuant to Section 2 of this Agreement and Employee receives the Special Termination
Payments, Employee agrees that following the termination of Employment:




	 	a.	 	Employee shall, for so long as such information remains
non-public, (i) hold in confidence and refrain from disclosing to any other
party all information, whether written or oral, tangible or intangible, of a
private, secret, proprietary or confidential nature, of or concerning the
Company or any of its subsidiaries or affiliates and their business and
operations, and all files, letters, memoranda, reports, records, computer
disks or other computer storage medium, data, models, or any photographic or
other tangible materials containing such information (“Confidential
Information”), including, but not limited to, any sales, promotional, or
marketing plans, programs, techniques, practices or strategies, any expansion
plans (including existing and entry into new geographic and/or product
markets), and any customer lists; (ii) take all precautions necessary to
ensure that the Confidential Information shall not be, or be permitted to be,
shown, copied, or disclosed to third parties, without the prior written
consent of the Company or any of its subsidiaries or affiliates; and (iii)
observe all security policies




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	 	 	 	implemented by the Company or any of its subsidiaries or affiliates with
respect to the Confidential Information. In the event that the Employee is
ordered to disclose any Confidential Information, whether in a legal or
regulatory proceeding or otherwise, the Employee shall provide the Company or
any of its subsidiaries or affiliates with prompt notice of such request or
order so that the Company or any of its subsidiaries or affiliates may seek to
prevent disclosure. In addition to the foregoing, the Employee shall not, at
any time, libel, defame, ridicule, or otherwise disparage the Company;
	 
	 	b.	 	Employee shall not, for a period of twelve (12) months
following the termination of employment, for any reason, (i) disparage the
Company or any of its subsidiaries or affiliates to any supplier or vendor of
the Company or any of its subsidiaries or affiliates, or (ii) request or
advise any supplier or vendor of the Company or any of its subsidiaries or
affiliates to withdraw, curtail, or cancel any such vendor’s business with the
Company or any of its subsidiaries or affiliates; and
	 
	 	c.	 	Employee shall not, for a period of twelve (12) months
following the termination of employment, for any reason, employ, or knowingly
permit any company or business directly or indirectly controlled by him, to
employ, any person who was employed by the Company or any of its subsidiaries
or affiliates at or within the prior six months, or in any manner seek to
induce any such person to leave his or her employment





     4. Notices. Notices and all other communications contemplated by this Agreement shall
be in writing and shall be deemed to have been duly given when received at the address specified
herein. In the case of Employee, notices shall be delivered to him at the home address which he
has most recently communicated to Company in writing. In the case of Company, notices shall be
delivered to Company’s corporate headquarters, and all notices shall be directed to the attention
of Company’s Chief Executive Officer.



     5. No Mitigation. Employee shall not be required to mitigate the amount of any payment
or benefit contemplated by this Agreement upon his termination of employment (whether by seeking
new employment or in any other manner), nor shall any such payment or benefit be reduced by any
earnings or benefits that Employee may receive from any other source.



     6. Modification and Waiver. This Agreement shall not be canceled, rescinded or
revoked, nor may any provision of this Agreement be modified, waived or discharged unless the
cancellation, rescission, revocation, modification, waiver or discharge is agreed to in writing
and signed by Employee and by the President or Chairman of the Board of Company. No waiver by
either party of any breach of, or of compliance with, any condition or provision of this Agreement
by the other party shall be



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considered a waiver of any other condition or provision or of the same condition or provision
at another time.




     7. Entire Agreement. This Agreement contains the entire understanding of the parties
in respect of its subject matter and supersedes all prior agreements and understandings (oral or
written) between or among the parties with respect to such subject matter.



     8. Headings. The headings of paragraphs and sections are for convenience of reference
and are not part of this Agreement and shall not affect the interpretation of any of its terms.



     9. Construction. This Agreement shall be construed as a whole according to its fair
meaning and not strictly for or against any party. The parties acknowledge that each of them has
reviewed this Agreement and has had the opportunity to have it reviewed by their respective
attorneys and that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in the interpretation of this Agreement.



     10. Withholding. All payments made to the Employee shall be made net of any applicable
withholding for income taxes and the Employee’s share of FICA, FUTA or other taxes. Company shall
withhold such amounts from such payments to the extent required by applicable law and remit such
amounts to the applicable governmental authorities in accordance with applicable law.



     11. Litigation; Venue. Any action at law or in equity under this Agreement shall be
brought in the courts of Broward County, Florida, and in no other court (whether or not
jurisdiction can be established in another court). Each party hereto waives the right to argue that
venue is not appropriate in the courts of Broward County, Florida.



     12. Expenses. Company shall reimburse the Employee for all costs and expenses,
including legal fees, that Employee incurs in connection with the enforcement of his rights under
this Agreement.



     13. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
instrument.



     14. Term of Agreement. The term (“Term”) of this Agreement shall commence on the
Effective Date of this Agreement and shall automatically expire (unless otherwise extended by the
mutual agreement of the parties hereto) on the date that is two years after the Effective Date of
this Agreement.



[Signatures on Next Page]




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     IN WITNESS WHEREOF, this Agreement is executed as of the date first written above.



	 	 	 	 	 
	 	 	ROADHOUSE GRILL, INC. a Florida corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Michael C. Brant
	 

	 	 	 	 
	 	 	Name (print): Michael C. Brant
	 	 	Title: Executive Vice President and Chief
Financial Officer
	 
	 	 	 	 
	 	 	EMPLOYEE
	 
	 	 	 	 
	 	 	/s/ Ayman A. Sabi
	 	 	 
	 	 	Ayman A. Sabi







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