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Exhibit 10.27
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") made and
entered into as of this 5th day of May, 1997, by and between POLLO TROPICAL,
INC., a Florida corporation (the "Company"), and XXXXXXXX X. XXXXXXXX
("Employee").
W I T N E S S E T H
WHEREAS, the Company and Employee are parties to that certain
Employment Agreement dated as of September 19, 1995 (the "Employment
Agreement"); and
WHEREAS, the Company and Employee desire to amend certain provisions
of the Employment Agreement relating, among other things, to certain payments
and benefits to which Employee may be entitled following certain events of
termination of Employee's employment with the Company and/or non-renewal or
expiration of term of the Employment Agreement; and
WHEREAS, as consideration for entering into this Amendment, employee
has agreed to forego certain bonus compensation to which Employee may otherwise
be entitled; and
WHEREAS, the Company believes this amendment is desirable and in the
best interests of the Company and its shareholders.
NOW, THEREFORE, for and in consideration of the mutual premises,
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
A M E N D M E N T
1. AMENDMENTS TO EMPLOYMENT AGREEMENT
(a) Section 2 of the Employment Agreement shall be amended by
deleting said existing Section 2 in its entirety and by inserting in its place
and stead the following new Section 2 of the Employment Agreement:
" 2. TERM OF EMPLOYMENT
2.1 INITIAL TERM. The initial term of this Agreement, and of
Employee's employment hereunder, shall be from the date hereof through
September 30, 1998 (the "Initial Term"), subject to earlier
termination pursuant to any of Sections 6, 7 or 8 hereof.
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2.2 RENEWAL TERMS. The term of this Agreement, and of
Employee's employment hereunder, may, at the Company's option,
exercisable in its sole and absolute discretion, be renewed and
extended as follows:
(i) through September 30, 1999 (the "First Renewal
Term"), provided the Company provides written notice to
Employee of such renewal and extension by no later than July
31, 1998. If this Agreement, and Employee's employment
hereunder, is not so renewed and extended by the Company, then
such Agreement shall automatically cease and terminate upon
the expiration of the Initial Term; and
(ii) if the Company exercises its option to renew and
extend the term of this Agreement, and of Employee's
employment hereunder, pursuant to clause (i) of this Section
2.2 above, then the Company may, at its option, exercisable in
its sole and absolute discretion, renew and extend same again
through September 30, 2000 (the "Second Renewal Term"),
provided the Company provides written notice to Employee of
such renewal and extension by no later than July 31, 1999; and
(iii) if the Company exercises its option to renew
and extend the term of this Agreement, and of Employee's
employment hereunder, pursuant to clause (ii) or this clause
(iii) of this Section 2.2, then the Company may, at its
option, exercisable in its sole and absolute discretion, renew
and extend same again for a one-year term (and successive
one-year terms) of employment (a "Subsequent Renewal Term"
and, collectively with the First Renewal Term and Second
Renewal Term, each a "Renewal Term" and together the "Renewal
Terms") ending on the date which is the first anniversary of
the date upon which Employee's employment under this Agreement
(or a renewal hereof) is scheduled to expire (an "Expiration
Date"), provided the Company provides written notice to
Employee of such one-year renewal and extension by no later
than 60 days prior to such Expiration Date. "
(b) Section 8.1 of the Employment Agreement shall be amended
by deleting said existing Section 8.1 in its entirety and by inserting in its
place and stead the following new Section 8.1 of the Employment Agreement:
" 8.1 Termination by Company Without Cause. The Company shall
have the right, in its sole and absolute discretion, to terminate the
employment of Employee, at any time, without Cause, or otherwise
without any cause, reason or justification, provided that the Company
provides to Employee at least thirty (30) days' prior written notice
(the "Termination Notice") of such termination. In the event of any
such termination by the Company, (i) Employee's employment with the
Company shall cease and terminate on the date specified in the
Termination Notice (or, if no date is so specified, on the date which
is 30 days following the date of such notice), and (ii) Employee shall
be entitled to receive and be paid solely the amounts, on the terms,
provided in Section 8.4 below, and the Company shall have
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no further obligation or liability to Employee hereunder (other than
for any reimbursement of reasonable out-of-pocket business expenses
properly incurred by Employee prior to such termination and documented
to the Company in accordance with Sections 5.2(b) and 5.2(c) hereof).
"
(c) Subsection (a) of Section 8.2 of the Employment Agreement
shall be amended by deleting said existing Subsection (a) of Section 8.2 in its
entirety and by inserting in its place and stead the following new Subsection
(a) of Section 8.2 of the Employment Agreement (and subsections (b) and (c) of
such Section 8.2 shall remain and continue, unamended, in full force and
effect):
" 8.2 TERMINATION BY EMPLOYEE FOR GOOD REASON; PROCEDURES.
(a) Employee shall have the right to terminate his employment with the
Company, at any time, for Good Reason (as such term is defined in
Section 8.2(c) below), provided that Employee provides not less than
forty-five (45) days' prior written notice to the Company, which
notice shall explain in reasonable detail the cause or reason for such
termination, and provided Employee satisfies the provisions and
procedures set forth in this Section 8.2. On a mutually agreed date
which shall be within fifteen (15) days following receipt of
Employee's notice to the Company, Employee shall meet with
representatives of the Company's Board of Directors and Employee shall
present testimony and other evidence as to the bona fides of his
purported termination for Good Reason hereunder. Within fifteen (15)
days following such meeting, the Company shall have the opportunity to
correct or cure the matter, or otherwise to address Employee's "Good
Reason" concerns, such that there is no further reasonable basis for
Employee's purported termination for Good Reason hereunder. If, at the
conclusion of such second fifteen (15) day period, Employee continues
to maintain in good faith that he has grounds to terminate his
employment for Good Reason under this Section 8.2, he shall provide
written notice of such, within five (5) days, to the Company, and
thereupon the parties shall endeavor, for a period not to exceed ten
(10) days, to amicably resolve, settle and compromise the matter. If
no such resolution, settlement or compromise is reached by the
conclusion of such 10-day period, the matter shall promptly be
submitted to arbitration in accordance with the procedures set forth
in Section 10.4 hereof. The determination of the arbitration panel
selected pursuant to Section 10.4 hereof -- which shall determine
whether Employee has properly terminated his employment for Good
Reason in accordance with this Agreement and, if so, the date of such
termination, and shall assess the fees and costs associated with
arbitration in accordance with Section 10.4 -- shall be final and
binding on all parties. "
(d) Section 8.3 of the Employment Agreement shall be amended
by deleting said existing Section 8.3 in its entirety and by inserting in its
place and stead the following new Section 8.3 of the Employment Agreement:
" 8.3 NON-RENEWAL OR EXPIRATION OF EMPLOYMENT TERM. Pursuant
to Section 2.2 hereof, the Company, in its sole and absolute
discretion, has the option, among other things, to renew and extend
this Agreement, and the employment of Employee hereunder. Pursuant to
such Section 2.2, the Company also has the right,
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in its sole and absolute discretion, not to renew or extend this
Agreement, and the employment of Employee hereunder, beyond the
Initial Term. In the event this Agreement is not renewed and extended
by the Company beyond the expiration of the Initial Term or any
Renewal Term, or otherwise expires in accordance with its terms (in
each case, an "Expiration"), then (i) this Agreement and Employee's
employment shall automatically cease and terminate upon such
Expiration, and (ii) Employee shall be entitled to receive and be paid
solely the amounts, on the terms, provided in Section 8.4 below, and
the Company shall have no further obligation or liability to Employee
hereunder (other than for any reimbursement of reasonable
out-of-pocket business expenses properly incurred by Employee prior to
such termination and documented to the Company in accordance with
Sections 5.2(b) and 5.2(c) hereof). Notwithstanding any other term or
provision in this Agreement (except as expressly provided in Section
8.4 hereof), no right to payments or benefits shall arise hereunder or
otherwise in the event the Company does not elect to renew or extend
Employee's employment term (or this Agreement) beyond the Initial Term
or any Renewal Term. "
(e) Section 8.4 of the Employment Agreement shall be amended
by deleting said existing Section 8.4 (and subsections (a), (b) and (c)
thereof) in its entirety and by inserting in its place and stead the following
new Section 8.4 of the Employment Agreement:
" 8.4 PAYMENTS UPON SECTION 8 TERMINATION OR EXPIRATION. (a)
In the event of either (a) a termination of Employee's employment
under, pursuant to and in compliance with Section 8.1 or Section 8.2
hereof, which termination of employment occurs at any time, or (b) in
the event of an Expiration (as such term is defined in Section 8.3
hereof) of this Agreement, then Employee shall be entitled solely to
the following payments and benefits:
(i) Employee's Base Salary then in effect, through
the date which is twelve (12) months following the date on
which Employee's employment is terminated or expires under the
terms of this Agreement (the "Special Severance Date"),
payable over such 12-month period at the Company's regular and
customary intervals for the payment of salaries as then in
effect; and
(ii) Employee's Stock Options to be granted under
the Option Agreement (as such terms are defined and described
in Section 4.1 hereof) shall vest as set forth in and in
accordance with the terms and provisions of the Option
Agreement; and
(iii) Employee's Restricted Stock to be granted to
Employee under and pursuant to the terms, restrictions and
provisions of the Restricted Stock Agreement (as such terms
are defined and described in Section 4.2 hereof) shall vest
as set forth in and in accordance with the schedule and other
terms and provisions of the Restricted Stock Agreement; and
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(iv) Employee's health and medical insurance
benefits described under Section 5.1(c) (in accordance with
the terms and provisions of such benefits and related plans),
shall be continued at the Company's expense through the date
which is six (6) months following the date on which
Employee's employment is terminated or expires under the
terms of this Agreement.
(b) Employee shall accept payment pursuant to this Section 8
in full discharge and release of the Company of and from any further
obligation or liability under this Agreement. "
(f) The reference in the parenthetical contained in the first
sentence of Section 9.2 of the Employment Agreement to "Section 8.4(b)(i)"
shall be amended by deleting said reference in its entirety and by inserting in
its place and stead the following Section reference: "SECTION 8.4".
2. UNAMENDED PROVISIONS CONTINUE IN EFFECT
All provisions of the Employment Agreement not specifically amended by
the provisions of Section 1 of this Amendment shall remain and continue in full
force and effect.
3. MISCELLANEOUS
(a) This Amendment (together with the provisions of the
Employment Agreement not specifically amended by this Amendment) represents the
entire agreement between the parties with respect to the subject matter hereof
and shall not be modified or affected by, and supersedes, any and all prior
offers, proposals, statements, understandings, promises, assurances, warranties
or representations, oral or written, made by, for or on behalf of either party.
This Amendment may not be amended or modified except by an instrument in
writing signed by the Company and Employee.
(b) The fact that one party initially prepared the first
draft, or was responsible for revising subsequent drafts, of this Agreement
shall be accorded no weight, shall give rise to no presumption regarding
bargaining position, and otherwise shall not affect the construction, meaning
or interpretation of any term or provision hereof, each party having been
represented by counsel having reviewed and discussed the document and having
thoughtfully considered and weighed the relative merits and costs, benefits and
detriments, of each of the provisions hereof before entering into this
Agreement.
(c) This Amendment, and all questions as to its validity,
interpretation, meaning, performance and enforcement, shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Florida.
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(d) If the Company so desires, the Employment Agreement, as
amended by and pursuant to this Amendment, may be restated in its entirety by
incorporating the revisions contained and specified in this Amendment into an
amended and restated form of employment agreement.
(e) This Amendment may be executed in separate counterparts,
each of which shall be deemed to be an original as against any party whose
signature (or, in the case of the Company, whose officer's signature) appears
thereon, and all of which together shall constitute one and the same instrument
and agreement. This Amendment shall be and become binding when both parties
hereto have signed or executed one or more counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
Witnesses: POLLO TROPICAL, INC.
By: /s/XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Chairman and Chief
Executive Officer
EMPLOYEE
/s/ XXXXXXXX X. XXXXXXXX
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XXXXXXXX X. XXXXXXXX
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