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EXHIBIT 10.39
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Amendment"), dated as of
January 3, 2001, is entered into by and between CKE RESTAURANTS, INC., a
Delaware corporation (the "Company") and XXXXXX X. XXXXXX (the "Employee").
WITNESSETH:
WHEREAS, the parties hereto made and entered into a written Employment
Agreement effective as of April 9, 1999 (the "Agreement");
WHEREAS, the parties hereto desire, and it is in the best interest of
each party, to amend the Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and obligations hereinafter set forth, the parties agree as follows:
1. Paragraph 1, Employment and Duties, is amended by deleting it in its
entirety and replacing it as follows:
"Subject to the terms and conditions of the Agreement, including
this Amendment, the Company employs the Employee to serve in an
executive and managerial capacity as President and Chief Executive
Officer (or such other title as the Company may designate), and the
Employee accepts such employment and agrees to perform such
reasonable responsibilities and duties commensurate with the
aforesaid positions as directed by the Company's Board of Directors
or as set forth in the Articles of Incorporation and the Bylaws of
the Company."
2. Xxxxxxxxx 0, Xxxx, is amended as follows:
"The term of this Agreement shall commence on the Effective Date and
shall continue for a period of five (5) years ending April 9, 2004,
subject to prior termination as set forth in Section 7 of the
Agreement (the "Term").
3. Paragraph 3, Salary, is amended as follows:
"Commencing September 6, 2000, and subject to the other provisions
of this Amendment, the Company shall pay the Employee a minimum base
annual salary of $500,000."
4. Paragraph 4, Other Compensation and Fringe Benefits, is amended as
follows:
Subdivision (a) is deleted in its entirety and replaced with the
following provision:
"The standard Company benefits enjoyed by the Company's other top
executives."
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Subdivision (c) is deleted in its entirety and replaced with the
following provision:
"(c) Provision by the Company during the Term and any extensions
thereof to the Employee and his dependents of the medical and other
insurance coverage provided by the Company to its other top
executives. In addition, the Company will reimburse Employees for
all medical, dental and vision care expenses incurred by the
Employee and his dependents that are not otherwise reimbursed or
covered by the base health insurance plan;"
Subdivision (e) is amended as follows:
"(e) The Annual Bonus for fiscal year ended January 28, 2001, and in
all subsequent years, shall be calculated by first determining the
amount by which the Company's net income increases over the prior
fiscal year. If such increase is 15%, Employee shall receive a bonus
equal to 50% of his then current minimum base annual salary and if
net income increases less than 15% or decreases, Employee shall
receive no bonus. For each full 5% increase in the Company's net
income over the 15% base increase, Employee's Annual Bonus shall
increase by an amount equal to 50% of his minimum base annual
salary. For example, a 30% increase in net income would result in a
bonus equal to 200% of the Employee's then current minimum base
annual salary. In no event shall the Annual Bonus exceed 200% of
Employee's minimum annual base salary. The Annual Bonus shall be
paid within ninety (90) days after the end of the fiscal year."
5. Paragraph 8, Severance Payment, is amended as follows:
Subdivision (b) (ii) is deleted in its entirety and replaced with
the following provision:
"(ii) in lieu of any further salary and bonus payments or other
payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay, as severance to the Employee, an
amount equal to the sum of (i) the Employee's minimum base annual
salary in effect as of the date of termination multiplied by the
number of years (including partial years) remaining in the Term or
the number two (2), whichever is greater, plus (ii) an Annual Bonus
calculated pursuant to Section 4 (e) above, but assuming a 30%
increase in net income (200% of Employee's minimum annual base
salary) multiplied by the number of years remaining in the contract
for which Employee has not, as yet, received an Annual Bonus or the
number two (2), whichever is greater, such payment to be made in a
lump sum on or before the fifth day following the date of
termination;"
6. Except as specifically set forth above, the Agreement and the terms
and conditions thereof, will remain in full force and effect. From
and after the date of execution of this Amendment, all references to
the Agreement shall be deemed to be references to the Agreement as
amended hereby.
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IN WITNESS WHEREOF, the parties have executed this Amendment on the day
and year first above written.
CKE RESTAURANTS, INC. EMPLOYEE
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By: Xxxxxx X. Xxxxxx
Its:
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