EXHIBIT 10.1
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AMENDMENT NO. 1
TO THE SEPTEMBER 28, 2000 ADVISORY AGREEMENT
BETWEEN BUFFETS HOLDINGS, INC. AND XXX X. XXXXXX
This AMENDMENT NO. 1 (this "Amendment") to the Advisory Agreement by
and between Buffets Holdings, Inc., a Delaware corporation (the "Holding Co."),
and Xxx X. Xxxxxx ("Advisor"), entered into on September 28, 2000, is made by
and between the Holding Co. and Advisor on December 13, 2005.
WHEREAS, Advisor and the Holding Co. desire to amend the Advisory
Agreement as provided in this Amendment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. EFFECTIVE DATE: The Advisory Agreement shall be amended as provided
in this Amendment, effective as of December 13, 2005 (the "Effective Date").
2. SECTION 1 of the Advisory Agreement is amended to delete the words
"the last day of Buffet's fiscal year 2005" from clause (i) thereof and add in
substitution thereof "June 30, 2006."
3. SECTION 2(A) of the Advisory Agreement is amended to (i) delete the
number "28" and add in substitution thereof the number "29", and (ii) add the
following sentence to the end of Section 2(a): "Effective as of December 13,
2005, you will also hold the position of Founder Advisor of Holding Co.".
4. SECTION 3(A) of the Advisory Agreement is amended to add the
following paragraph at the end of such section:
Notwithstanding the foregoing, with respect to the period from
November 7, 2005 through the earlier of June 30, 2006 and the date
your services for Holding Co. terminate pursuant to Section 4 of
the Advisory Agreement, your cash compensation shall also include
(i) an amount based on an annualized rate of $200,000 and (ii) an
incentive compensation payment at the close of Fiscal 2006 equal
to $70,000 if there is a minimum $30.5 million improvement in
enterprise value between FY 2005 and FY 2006, plus 0.25% of each
dollar of enterprise value improvement beyond $30.5 million.
In addition, if a "Realization Event" (as defined below) occurs
prior to July 31, 2006, and you continue to provide services to
the Holding Co. pursuant to the Advisory Agreement through the
date of the Realization Event, then the Holding Co. agrees to pay
you a lump sum cash payment based on the purchase price received
by holders of the Company's common stock as presently constituted,
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$0.01 par value (the "Common Stock") in connection with such
Realization Event, calculated pursuant to the provisions set forth
in detail in our side letter sent to you on December 13, 2005 (the
"Side Letter"). For purposes of this Amendment, a "Realization
Event" shall mean any transaction in which Xxxxxx-Xxxxxx has the
right to exercise "Drag-Along Rights" pursuant to Section 4.7 of
the Stockholders' Agreement.
5. SECTION 3(D) of the Advisory Agreement is amended to delete the
words "During the Service Period" in the first sentence and in substitution
thereof the words "Until December 31, 2010".
6. SECTION 4(A), (B), (C), (D) AND SECTION 6 (B) (I), (II) AND (III) of
the Advisory Agreement is amended to add the words "Founder Advisor and"
immediately preceding the words "Vice Chairman" in each instance the words "Vice
Chairman" appear; provided that the words "Founder Advisor" shall not be added
in the last sentence of Section 4(c).
7. SECTION 4(B) of the Advisory Agreement is amended to delete the
words "the end of Buffet's fiscal year 2005" and add in substitution thereof the
words "June 30, 2006".
8. SECTION 4(C) of the Advisory Agreement is amended to delete the
words "the end of Buffet's fiscal year 2005" and add in substitution thereof the
words "June 30, 2006".
9. SECTION 4(D) of the Advisory Agreement is amended to add the words
"until the earlier of June 30, 2006 and" immediately after the words "Cash
Compensation".
10. SECTION 5 of the Advisory Agreement is amended to delete the number
"28" and add in substitution thereof the number "29".
11. CONTINUING EFFECT OF ADVISORY AGREEMENT. Except as expressly
modified hereby, the provisions of the Advisory Agreement are and shall remain
in full force and effect.
12. SEVERABILITY. The invalidity or unenforceability of any provision
of this Amendment shall not affect the validity or enforceability of any other
provision of this Amendment.
13. WITHHOLDING. The Holding Co. may withhold from any amounts payable
under this Amendment such federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
14. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to its
principles of conflict of laws or such principles of any other jurisdiction
which could cause the application of the laws of any jurisdiction other than the
State of Delaware.
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15. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
16. EFFECTIVENESS. This Amendment shall become effective as of the
Effective Date.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to
be duly executed as of the date first above written.
BUFFETS HOLDINGS, INC. FOUNDER-ADVISOR
By: /s/ R. Xxxxxxx Xxxxxxx, Jr. /s/ Xxx X. Xxxxxx
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Name: R. Xxxxxxx Xxxxxxx, Jr. Xxx X. Xxxxxx
Title: Chief Executive Officer
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