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Exhibit 10.12  


 
  EXECUTIVE SEVERANCE AGREEMENT    
    


[Date]



[Name
and Address] 


Executive


McCormick &
Schmick's Seafood Restaurants, Inc.

720 SW Washington Street

Suite 550

Portland, OR 97205 


Company


        The
Company considers the attraction and retention of highly qualified management personnel to be essential to promoting the best interests of the Company and its shareholders. In this
connection, the Company recognizes that, as is the case of many publicly held corporations, the possibility of a change of control exists and this possibility, and the uncertainty and questions which
it may raise among management, may result in the departure or distraction of management personnel to the detriment of the Company and its shareholders. To induce Executive to remain employed by the
Company in the face of uncertainties about the long-term strategies of the Company and possible change of control of the Company and their potential impact on Executive's position with the
Company, this Agreement, which has been approved by the Board of Directors of the Company, sets forth the severance benefits that the Company will provide to Executive if Executive's employment by the
Company is terminated in the circumstances described in this Agreement. 


        1.     Employment Relationship. Executive is currently employed by the Company
as                        . Executive and the Company
acknowledge that either party may terminate this employment relationship at any time and for any or no reason, subject to the obligation of the Company to provide the severance benefits specified in
this Agreement in accordance with its terms. 


        2.     Release of Claims. In consideration for and as a condition precedent to receiving the severance benefits outlined in this
Agreement, Executive shall execute a Release of Claims in the form attached as Exhibit A ("Release of Claims"). 


        3.     Compensation Upon Termination. In the event of a Termination of Executive's Employment (as defined in Section 7.1)
at any time other than for Cause (as defined in Section 7.2), and contingent upon Executive's compliance with Section 9 and execution of the Release of Claims and the expiration of the
seven-day revocation period provided by the Age Discrimination in Employment Act of 1967, as amended by the Older Worker Benefit Protection Act of 1990, without revocation of the Release
of Claims by Executive, the Company shall pay or provide the following to Executive: 



        3.1   As
severance pay and in lieu of any other compensation for periods subsequent to the date of termination, the Company shall pay Executive, in a single payment within ten
days after the date of termination, an amount in cash equal to (a) one year of Executive's annual base pay at the rate in effect immediately prior to the date of termination plus (b) the
annual average of the amount paid to Executive under all annual cash incentive plans during the prior two full years ending prior to the date of termination. 



        3.2   The
Company shall pay Executive a lump sum payment in an amount equivalent to the reasonably estimated cost Executive may incur to extend for a period of six months
under the COBRA continuation laws Executive's group health and dental plan coverage in effect at the time of termination. Executive may use this payment for such continuation coverage or for any other
purpose. 


        3.3   The
Company shall pay Executive a portion of the benefits under all annual cash incentive plans in effect at the time of termination equal to the estimated amount
payable under such plans for the full year (based on performance or results to the date of termination) prorated 








 




for
the portion of the plan year during which Executive was a participant. For purposes of this Agreement, Executive's participation in any such plan will be considered to have ended on Executive's
date of termination. In making the proration calculation, the amount of Executive's award if Executive had been a participant for the full incentive period shall be divided by the total number of days
in the incentive period and the result multiplied by the actual number of days Executive participated in the plan. The Company shall pay such amount within 10 days after the date of
termination. 


        3.4   If
Executive's employment with the Company terminates for any reason prior to a Change of Control (as defined in Section 7.3), other than at the direction of a
person who has entered into an agreement with the Company the consummation of which will constitute a Change of Control, Executive shall not be entitled to benefits under Section 4. 




        4.     Compensation Upon Termination Following A Change of Control. In the event of a Termination of Executive's Employment other
than for Cause within 12 months following a Change of Control, or prior to a Change of Control at the direction of a person who has entered into an agreement with the Company, the consummation
of which will constitute a Change of Control, and contingent upon Executive's compliance with Section 9 and execution of the Release of Claims and the expiration of the seven-day
revocation period provided by the Age Discrimination in Employment Act of 1967, as amended by the Older Worker Benefit Protection Act of 1990, without revocation of the Release of Claims by Executive,
the Company shall pay or provide the following to Executive: 



        4.1   As
severance pay and in lieu of any other compensation for periods subsequent to the date of termination, the Company shall pay Executive, in a single payment within ten
days after the date of termination, an amount in cash equal to (a) one year of Executive's annual base pay at the rate in effect immediately prior to the date of termination plus (b) the
annual average of the amount paid to Executive under all annual cash incentive plans during the prior two full years ending prior to the date of termination. 


        4.2   The
Company shall pay Executive a lump sum payment in an amount equivalent to the reasonably estimated cost Executive may incur to extend for a period of six months
under the COBRA continuation laws Executive's group health and dental plan coverage in effect at the time of termination. Executive may use this payment for such continuation coverage or for any other
purpose. 


        4.3   The
Company shall pay Executive a portion of the benefits under all annual cash incentive plans in effect at the time of termination equal to the estimated amount
payable under such plans for the full year (based on performance or results to the date of termination) prorated for the portion of the plan year during which Executive was a participant. For purposes
of this Agreement, Executive's participation in any such plan will be considered to have ended on Executive's date of termination. In making the proration calculation, the amount of Executive's award
if Executive had been a participant for the full incentive period shall be divided by the total number of days in the incentive period and the result multiplied by the actual number of days Executive
participated in the plan. The Company shall pay such amount within 10 days after the date of termination. 


        4.4   All
outstanding stock options held by Executive under all stock option and stock incentive plans of the Company shall become immediately exercisable in full and shall
remain exercisable until the earlier of (a) two years after termination of employment or (b) the option expiration date as set forth in the applicable option agreement. 


        4.5   If
it is determined that any payments, distributions or benefits (or the acceleration of the right to receive any payments, distributions or benefits) received or to be
received by the Executive from the Company or any affiliate of the Company under this Agreement or under any other 



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agreement,
plan or otherwise ("Payments") are subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 (the "Excise Tax"), the Executive shall be entitled to
receive an additional payment (the "Excise Tax Gross-Up Payment") at the time such Payments are made to the Executive or, if applicable, upon any later determination. The amount of the
Excise Tax Gross-Up Payment shall be the amount necessary to put the Executive in the same after-tax financial position the Executive would have occupied if the Payments were
not subject to the Excise Tax, assuming the Executive is subject to federal and state income tax at the highest marginal rates applicable to individuals in the year in which any Excise Tax
Gross-Up Payment is made. 


        4.6   The
benefits provided in this Section 4 shall be in lieu of and not in addition to benefits provided in Section 3. Executive shall not receive benefits
under both Section 3 and Section 4. 




        5.     Tax Withholding; Subsequent Employment. 



        5.1   All
payments provided for in this Agreement are subject to applicable tax withholding obligations imposed by federal, state and local laws and regulations. 



        5.2   The
amount of any payment provided for in this Agreement shall not be reduced, offset or subject to recovery by the Company by reason of any compensation earned by
Executive as the result of employment by another employer after termination. 




        6.     Other Agreements. If severance benefits are payable to Executive under any other agreement with the Company in effect at
the time of termination (including but not limited to any employment agreement, but excluding for this purpose any stock option agreement or stock bonus agreement or stock appreciation right agreement
that may provide for accelerated vesting or related benefits upon the occurrence of a change in control), the benefits provided in this Agreement shall not be payable to Executive. Executive may,
however, elect to receive all of the benefits provided for in this Agreement in lieu of all of the benefits provided in all such other agreements. Any such election shall be made with respect to the
agreements as a whole, and Executive cannot select some benefits from one agreement and other benefits from this Agreement. 


        7.     Definitions. 



        7.1   Termination
of Executive's Employment. Termination of Executive's Employment means that Executive has ceased to be an employee of the Company by reason of (a) the
termination by the Company of Executive's employment with the Company (including any subsidiary of the Company), (b) death or (c) Disability. For purposes of Section 4,
Termination of Executive's Employment shall also include termination by Executive, within 12 months of a Change of Control, by written notice to the Company referring to the applicable
paragraph of Section 7.1, for "Good Reason" based on: 



        (A)  the
assignment of Executive a different title or job responsibilities that result in a substantial decrease in the level of responsibility from those in effect
immediately prior to the Change of Control; 


        (B)  a
reduction by the Company or the surviving company in Executive's base pay as in effect immediately prior to the Change of Control; 


        (C)  a
significant reduction by the Company or the surviving company in total benefits available to Executive under cash incentive, stock incentive and other employee benefit
plans after the Change of Control compared to the total package of such benefits as in effect prior to the Change of Control; 



        (D)  the
requirement by the Company or the surviving company that Executive be based more than 50 miles from where Executive's office is located immediately prior to the
Change 




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of
Control, except for required travel on company business to an extent substantially consistent with the business travel obligations which Executive undertook on behalf of the Company prior to the
Change of Control; or 


        (E)  the
failure by the Company to obtain from any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company ("Successor") the assent to this Agreement contemplated by Section 8 hereof. 




        7.2   Cause.
Termination of Executive's Employment for "Cause" shall mean termination upon (a) the willful and continued failure by Executive to perform substantially
Executive's reasonably assigned duties with the Company (other than any such failure resulting from Executive's incapacity due to physical or mental illness) after a demand for substantial performance
is delivered to Executive by the Board, the Chief Executive Officer or the President of the Company which specifically identifies the manner in which the Board or the Company believes that Executive
has not substantially performed Executive's duties or (b) the willful engaging by Executive in illegal conduct which is materially and demonstrably injurious to the Company. 


        7.3   Change
of Control. A Change of Control shall mean that one of the following events has taken place: 



        (A)  The
shareholders of the Company approve one of the following ("Approved Transactions"): 



          (i)  Any
merger or statutory plan of exchange involving the Company ("Merger") in which the Company is not the continuing or surviving corporation or pursuant to which
Common Stock would be converted into cash, securities or other property, other than a Merger involving the Company in which the holders of Common Stock immediately prior to the Merger have the same
proportionate ownership of Common Stock of the surviving corporation after the Merger; or 


         (ii)  Any
sale, lease, exchange, or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company or the
adoption of any plan or proposal for the liquidation or dissolution; 




        (B)  During
any period of 12 months or less, individuals who at the beginning of such period constituted a majority of the Board of Directors cease for any reason to
constitute a majority thereof unless the nomination or election of such new directors was approved by a vote of at least two-thirds of the directors then still in office who were directors
at the beginning of such period. 


        (C)  A
tender or exchange offer, other than one made by the Company, is made for Company Common Stock ("Common Stock") (or securities convertible into Common Stock) and such
offer results in a portion of those securities being purchased and the offeror after the consummation of the offer is the beneficial owner (as determined pursuant to Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), directly or indirectly, of securities representing at least 20 percent of the voting power of outstanding securities of the
Company; 


        (D)  the
Company receives a report on Schedule 13D of the Exchange Act reporting the beneficial ownership by any person of securities representing 20 percent or
more of the voting power of outstanding securities of the Company, except that if such receipt shall occur during a tender offer or exchange offer described in (B) above, a Change of Control
shall not take place until the conclusion of such offer. 




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Notwithstanding
anything in the foregoing to the contrary, no Change of Control shall be deemed to have occurred for purposes of this Agreement by virtue of any transaction which results in Executive,
or a group of persons which includes Executive, acquiring, directly or indirectly, securities representing 20 percent or more of the voting power of outstanding securities of the Company. 


        7.4   Disability.
Termination of Executive's Employment based on "Disability" shall mean termination due to Executive's absence from Executive's full-time duties
with the Company for 180 consecutive days as a result of Executive's incapacity due to physical or mental illness, unless within 30 days after notice of termination by the Company following
such absence Executive shall have returned to the full-time performance of Executive's duties. 




        8.     Successors; Binding Agreement. 



        8.1   This
Agreement shall be binding on and inure to the benefit of the Company and its Successors and assigns. Upon Executive's written request, the Company will seek to
have any Successor by agreement assent to the fulfillment by the Company of its obligations under this Agreement. If such a request is made, failure of the Company to obtain such assent prior to or at
the time a company becomes a Successor shall constitute Good Reason for termination by Executive of his or her employment and, if a Change of Control of the Company has occurred, shall entitle
Executive to the benefits pursuant to Section 4. 


        8.2   This
Agreement shall inure to the benefit of and be enforceable by Executive and Executive's legal representatives, executors, administrators and heirs. 




        9.     Resignation of Corporate Offices. Executive will resign Executive's office, if any, as a director, officer or trustee of
the Company, its subsidiaries or affiliates and of any other corporation or trust of which Executive serves as such at the request of the Company, effective as of the date of termination of
employment. Executive agrees to provide the Company such written resignation(s) upon request and that no severance will be paid until after such resignation(s) are provided. 


        10.   Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Oregon
applicable to contracts made and to be performed in Oregon. 


        11.   Attorneys Fees. The Company shall pay all reasonable attorney's fees and expenses (including at trial and on appeal) of
Executive in enforcing its rights under Section 4 of this Agreement. 


        12.   Amendment. No provision of this Agreement may be modified unless such modification is agreed to in a writing signed by
Executive and the Company. 


        13.   Severability. If any of the provisions or terms of this Agreement shall for any reason be held invalid or unenforceable,
such invalidity or unenforceability shall not affect any other terms of this Agreement, and this Agreement shall be construed as if such unenforceable term had never been contained in this Agreement. 



	McCORMICK & SCHMICK'S

SEAFOOD RESTAURANTS, INC.	 	 
	

By:	

 	
 	

 
	 	
	 	

	 	 	 	Executive
	Title:	 	 	 
	 	
	 	 




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EXHIBIT A    
    
    RELEASE OF CLAIMS    
    


	1.
	Parties. 



        The
parties to Release of Claims (the "Release") are                        and McCormick & Schmick's Seafood Restaurants,
 Inc. ("McCormick & Schmick"), as hereinafter
defined. 



	1.1
	Executive. 




        For
the purposes of this Release, "Executive" means                        and his or her attorneys, heirs, executors, administrators,
assigns, and spouse. 


	1.2
	The Company. 




        For
purposes of this Release "Company" means McCormick & Schmick's Seafood Restaurants, Inc., its predecessors and successors, corporate affiliates, and all of each
corporation's officers, directors, employees, insurers, agents, or assigns, in their individual and representative capacities. 



	2.
	Background And Purpose. 



        Executive
was employed by McCormick & Schmick. Executive's employment is ending effective                        under the
conditions described in Section [3 or
4] of the Executive Severance Agreement dated                        between Company and Executive ("Agreement"). 


        The
purpose of this Release is to settle, and the parties hereby settle, fully and finally, any and all claims Executive may have against Company, whether asserted or not, known or
unknown, including, but not limited to, claims arising out of or related to Executive's employment, termination, any claim for reemployment, or any other claims whether asserted or not, known or
unknown, past or future, that relate to Executive's employment, reemployment, or application for reemployment. 


	3.
	Release. 



        Except
as provided in paragraph 3.1, Executive waives, acquits and forever discharges Company from any obligations Company has and all claims Executive may have including but not
limited to obligations and/or claims arising from the Agreement or any other document or oral agreement relating to employment compensation, benefits, severance or post-employment issues.
Executive hereby releases Company from any and all claims, demands, actions, or causes of action, whether known or unknown, arising from or related in any way to any employment of or past or future
failure or refusal to employ Executive by Company, or any other past or future claim (except as reserved by this Release or where expressly prohibited by law) that relates in any way to Executive's
employment, termination, compensation, benefits, reemployment, or application for employment, with the exception of any claim Executive may have against McCormick & Schmick's for enforcement of
this Release. This release includes any and all claims, direct or indirect, which might otherwise be made under any applicable local, state or federal authority, including but not limited to any claim
arising under local or state statutes dealing with employment, discrimination in employment, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans With Disabilities
Act, the Family and Medical Leave Act of 1993, the Equal Pay Act of 1963, Executive Order 11246, the Rehabilitation Act of 1973, the Uniformed Services Employment and Reemployment Rights Act of 1994,
the Age Discrimination in Employment Act, the Older Worker Benefit Protection Act, the Fair Labor Standards Act, state wage and hour statutes, all as amended, any regulations under such authorities,
and any applicable constitutional, contract, tort, or common law theories. 



	3.1
	Reservations Of Rights. 



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        This
Release shall not affect any rights which Executive may have under (i) any employee benefit plans or programs, including, without limitation, under any medical insurance,
disability plan, workers' compensation, unemployment compensation, indemnifications, company stock incentive plan(s) and related agreements (including the [identify
specific plans] or (ii) any provision of the Agreement that contains obligations of Company that continue after the payment of benefits under Sections
[3 or 4] of the Agreement. 


	3.2
	No Admission Of Liability. 




        It
is understood and agreed that the acts done and evidenced hereby and the release granted hereunder is not an admission of liability on the part of Executive or Company, by whom
liability has been and is expressly denied. 



	4.
	Consideration To Executive. 



        After
receipt of this Release signed by Executive, and the expiration of the seven-day revocation period provided by the Age Discrimination in Employment Act of 1967, as
amended by the Older Worker Benefit Protection Act of 1990, without Executive's revocation, Company shall pay the Executive the appropriate severance benefits as provided in the Agreement. 


	5.
	Scope Of Release. 



        The
provisions of this Release shall be deemed to obligate, extend to, and inure to the benefit of the parties; McCormick & Schmick's parents, subsidiaries, affiliates,
successors, predecessors, assigns, directors, officers, and employees; and each parties insurers, transferees, grantees, legatees, agents and
heirs, including those who may assume any and all of the above-described capacities subsequent to the execution and effective date of this Release. 


	6.
	Opportunity For Advice Of Counsel. 



        Executive
acknowledges that Executive has been encouraged to seek advice of counsel with respect to this Release and has had the opportunity to do so. 


	7.
	Entire Release. 



        This
Release and the Agreement signed by Executive contain the entire agreement and understanding between the parties and, except as reserved in paragraph 3.1 of this Release,
supersede and replace all prior agreements, written or oral, prior negotiations and proposed agreements, written or oral. Executive and McCormick & Schmick's acknowledge that no other party or
any agent or attorney of any other party, has made any promise, representation, or warranty, express or implied, not contained in this Release concerning the subject matter of this Release to induce
this Release, and Executive and Company acknowledge that they have not executed this Release in reliance upon any such promise, representation, or warranty not contained in this Release. 


	8.
	Severability. 



        Every
provision of this Release is intended to be severable. If any term or provision of this Release is declared to be illegal or invalid for any reason by a court of competent
jurisdiction or by final and unappealed order of an administrative agency of competent jurisdiction, such illegality or invalidity should not affect the balance of the terms and provisions of this
Release, which terms and provisions shall remain binding and enforceable. 


	9.
	Parties May Enforce Release. 





        Nothing
in this Release shall operate to release or discharge any parties to this Release or their successors, assigns, legatees, heirs, or personal representatives from any rights,
claims, or causes of action arising out of, relating to, or connected with a breach of any obligation of any party contained in this Release. 


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	10.
	Costs And Attorney's Fees. 



        In
the event of an administrative or civil action to enforce the provisions of this Release pursuant to benefits provided under Section 4 of the Agreement, McCormick &
Schmick's shall pay Executive's reasonable attorneys' fees through trial and/or on appeal. Otherwise, the parties shall pay their own costs and attorneys' fees. 


	11.
	Acknowledgment. 



        Executive
acknowledges that the Release provides severance pay and benefits which McCormick & Schmick would otherwise have no obligation to provide. 


	12.
	Revocation. 



        As
provided by the Age Discrimination in Employment Act of 1967, as amended by the Older Worker Benefit Protection Act of 1990 ("OWBPA"), Executive is entitled to have 21 days
[or 45 days if required at the time by the OWBPA] to consider this Release. For a period of 7 days from execution of this Release, Executive may revoke this
Release. Upon receipt of Executive's signed Release and the end of the revocation period without revocation by Executive, payment by Company as described in paragraph 4 above will be forwarded
by mail in a timely manner as provided herein. 



	 	 	 	 	 	 	 	Dated:	 
	
	 	 	

	[Name of Executive]	 	 	 
	

STATE OF	

 	
 	

)	
 	

 	
 	

 	

 
	 	
	 	 	 	 	 	 	 
	 	 	 	) ss.	 	 	 	 	 
	 	
	 	 	 	 	 	 	 
	County of	 	 	)	 	 	 	 	 
	 	
	 	 	 	 	 	 	 





        Personally appeared the above named                        and
acknowledged the foregoing instrument to be his or her voluntary act and deed. 



	 	 	Before me:	 	 	 	 
	 	 	 	 	

	 	 	 	 	Notary Public for	 	 
	 	 	 	 	 	 	

	 	 	 	 	My commission expires:	 	 
	 	 	 	 	 	 	






	McCORMICK & SCHMICK'S

SEAFOOD RESTAURANTS, INC.	 	 	 
	

By:	

 	
 	

Dated:	

 
	 	
	 	 	

	Title:	 	 	 	 
	 	
	 	 	 




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EXECUTIVE SEVERANCE AGREEMENT

EXHIBIT A RELEASE OF CLAIMS