Exhibit 10.1
AMENDMENT TO EMPLOYMENT AGREEMENT
Between Xxxxx'x Corporation (formerly doing business as
Advantica Restaurant Group, Inc.) And Xxxxxx X. Xxxxxxxxx
This Amendment to Employment Agreement ("Amendment"), made the 30th day
of May, 2003, is entered into by and between Xxxxx'x Corporation (formerly doing
business as Advantica Restaurant Group, Inc.), a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxxxxx (the "Executive"), residing at 0000
Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX 00000.
WHEREAS, the Company and the Executive are parties to a certain
Employment Agreement dated January 2, 2001 (the "Employment Agreement"); and
WHEREAS, the Board of Directors of the Company and Executive wish to
modify the current "Termination without Cause" termination benefit as set forth
in Section 5(b)(iii) and add a "Change of Control" provision to the Employment
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the Company
and the Executive agree to modify or add the following provisions to the
Employment Agreement:
1. TERMINATION BENEFITS FOR TERMINATION WITHOUT CAUSE. Subsection
5(b)(iii) of the Employment Agreement is hereby modified to state as follows: In
the event of a "Termination without Cause" as defined in subsection 5(c)(iv),
(A) the Executive and/or his Family shall be entitled until the earlier of (x)
the first anniversary of the date of such termination of employment or (y) the
commencement of coverage of the Executive and/or his Family by another group
medical benefits plan providing substantially comparable benefits to the Welfare
Benefits and which does not contain any preexisting condition exclusions or
limitations, to receive and participate in the Welfare Benefits in addition to
any continuation coverage which the Executive and/or his Family is entitled to
elect under Section 4980B of the Code; and (B) not later than five (5) business
days after such termination, the Company shall pay to the Executive a severance
payment in a lump sum amount equal to two (2) times the sum of (i) the
Executive's then current Base Salary and (ii) a Targeted Bonus amount equal to
seventy-five percent (75%) of such Base Salary.
2. CHANGE OF CONTROL. (A) Provided, however, that should such
Termination Without Cause occur within one (1) year following the consummation
of a "Change of Control" (as defined below), the Company shall pay the Executive
upon the effective date of said termination a lump sum payment equal to 299% of
the sum of (i) the Executive's Base Salary for the twelve month period
immediately preceding the date of termination and (ii) a Targeted Bonus amount
equal to seventy-five percent (75%) of such Base Salary.
(B) For purposes of this Addendum, Change of Control shall mean
the occurrence of any of the following:
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(i) An acquisition of any voting securities of the Company (the
Voting Securities") by any "Person" (as the term is used for purposes of Section
13(d) or 14(d) of the Exchange Act) immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of fifty-one percent (51%) or more of the combined voting of the
Company's then outstanding Voting Securities; provided, however, in determining
whether a Change of Control has occurred, the acquisition of Voting Securities
in a "Non-Control Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change of Control. A "Non-Control Acquisition"
shall mean an acquisition by (a) an employee benefit plan (or a trust forming a
part thereof) maintained by (1) the Company or (2) any corporation or other
Person of which a majority of its voting power or its voting equity securities
or equity interest is owned, directly or indirectly, by the Company; (b) the
Company or any Subsidiary; (c) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined), or (d) any Person who, immediately prior
to such acquisition, owned fifty-one percent (51%) or more of the combined
voting power of the Company's then outstanding Voting Securities.
(ii) The individuals who, as of the date hereof, are members
of the Board (the "Incumbent Board"), cease for any reason to constitute at
least a majority of the members of the Board; provided, however, that if the
election, or nomination for election by the Company's common stockholders, of
any new director was approved by a majority of the Incumbent Board, such new
director shall, for purposes of this Plan, be considered as a member of the
Incumbent Board; provided, further, however, that no individual shall be
considered a member of the Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Incumbent Board (a "Proxy Contest"), including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy Contest; or
(iii) The consummation of:
(a) A merger, consolidation or reorganization with
or into the Company or in which securities of the Company are issued (a
"Merger"), unless such Merger is a "Non-Control Transaction." A "Non-Control
Transaction" shall mean a Merger if:
(I) the shareholders of the Company,
immediately before such Merger own directly or indirectly immediately following
such Merger at least fifty-one percent (51%) of the combined voting power of the
outstanding voting securities of the corporation resulting from such Merger (the
"Surviving Corporation") in substantially the same proportion as their ownership
of the Voting Securities immediately before such Merger,
(II) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such Merger constitute at least a majority of the members of the
board of directors of the Surviving Corporation, or a corporation beneficially
owning, directly or indirectly, a majority of the voting securities of the
Surviving Corporation, and
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(III) no Person other than (A) the Company,
(B) any Subsidiary, (C) any employee benefit plan (or any trust forming a part
thereof) that, immediately prior to such Merger was maintained by the Company or
any Subsidiary, or (D) any Person who, immediately prior to such Merger had
Beneficial Ownership of fifty-one percent (51%) or more of the combined voting
power of the Surviving Corporation's then outstanding voting securities or its
common stock;
(b) A complete liquidation or dissolution of the
Company (not including a "Non-Control Transaction"); or
(c) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Subsidiary or the distribution to the Company's shareholders of
the stock of a Subsidiary or any other assets).
Notwithstanding the foregoing, a Change of Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Voting
Securities as a result of the acquisition of Voting Securities by the Company
which, by reducing the number of shares Beneficially Owned by the Subject
Person, provided that if a Change of Control would occur (but for the operation
of this sentence) as a result of the acquisition of Voting Securities by the
Company, and after such share acquisition by the Company, the Subject Person
becomes the Beneficial Owner of any additional Voting Securities which increases
the percentage of the then outstanding Voting Securities Beneficially Owned by
the Subject Person, then a Change of Control shall occur.
3. CONTINUING FORCE AND EFFECT. All provisions of the Employment
Agreement not hereby amended are specifically ratified and confirmed and shall
continue in force and effect.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Amendment
as of the date first written above.
XXXXX'X CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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