EXHIBIT 10.79
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT DATED JANUARY 1, 2001
BETWEEN
AFC ENTERPRISES, INC. (THE "COMPANY")
AND
XXXXX X. XXXXXXXXX ("EMPLOYEE")
WHEREAS, the Company and Employee entered into an Employment Agreement
dated as of December 8, 2000, (the "Employment Agreement") governing the terms
and conditions of Employee's employment with the Company; and
WHEREAS, the Company and Employee desire to amend certain provisions of
the Employment Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Section 1 of the Employment Agreement is hereby amended to
change "Section 8" to "Section 8 or Section 9" in the first sentence.
2. Section 6.07(b) of the Employment Agreement is being revised to
eliminate provisions regarding the ability of the Chief Executive Officer or the
Board of Directors of the Company to decrease the amount of benefits being
provided. Therefore, Section 6.07(b) of the Employment Agreement is hereby
deleted in its entirety and the following new Section 6.07(b) is inserted in
lieu thereof:
(b) Anything in Sections 6.01, 6.02, 6.03, and 6.04 to the
contrary notwithstanding, the amount of the benefits provided
for in this Section 6 are subject to adjustment as shall be
provided for in the plan or insurance contract, as the case may
be, pursuant to which such benefit is being paid and the
Employee will be given written notice of any such change.
Anything in this Agreement to the contrary notwithstanding, the
Chief Executive Officer or the Board of Directors shall have
full authority to make all determinations deemed necessary or
advisable for the administration of the benefits described in
this Section 6. Subject to Section 12.04, the good faith
interpretation and construction by the Chief Executive Officer
or the Board of Directors of the terms of this Section 6 or the
benefit programs described herein shall be final, conclusive and
binding on Employee.
3. Section 8.01(b) of the Employment Agreement is being revised to
ensure that the definition of "Disability" is consistent with the "maximum
elimination period of ninety (90) days" referred to in Section 6.03(a) of the
Employment Agreement, by amending the language to require a consecutive ninety
(90) day period of Disability. Therefore, Section 8.01(b) is deleted in its
entirety, and the following new Section 8.01(b) is inserted in lieu thereof:
(b) Disability. The term "Disability" shall mean the good faith
determination by the Chief Executive Officer or the Board of
Directors of the Company that Employee has failed to or has been
unable to perform his duties as the result of any physical or
mental disability for a period of ninety (90) consecutive days
during any one period of Disability.
4. Section 8.03 of the Employment Agreement is being revised to
clarify that: (A) the Company may terminate Employee without Cause; and (B) if
Employee is terminated for any reason (other than by death, disability, or for
Cause), including, the Company's failure to renew the Employment Agreement upon
expiration of the term, then the Employee will be entitled to certain
post-employment payments. Therefore, Section 8.03 of the Employment Agreement is
hereby deleted in its entirety and the following new Section 8.03 is inserted in
lieu thereof:
8.03 Termination by the Company for other than Death or
Disability or for Cause. The Company may terminate Employee's
employment hereunder without cause at any time, upon written
notice. If upon expiration of the term of this Agreement or if
Employee's employment is terminated by the Company prior to the
expiration of the term of this Agreement without cause or other
than (i) by reason of Employee's death or Disability or (ii) for
Cause, the Company shall pay or provide to Employee, in lieu of
all other amounts payable hereunder or benefits to be provided
hereunder the following: (a) a payment equal to the sum of one
(1) times Employee's Base Salary at the time of termination; (b)
a payment equal to one (1) times Employee's Target Incentive Pay
for the year in which such termination occurs (or, if no Target
Incentive Pay has been designated for such year, then the Target
Incentive Pay for the last year in which it was designated prior
to such termination); and (c) the acceleration of any unvested
rights of Employee under any stock options or other equity
incentive programs such that they shall immediately vest under
the terms of such plans. As a condition precedent to the
requirement of Company to make such payments or grant such
accelerated vesting, Employee shall not be in breach of his
obligations under Section 10 hereof and Employee shall execute
and deliver to Company a general release in favor of the Company
in substantially the same form as the general release then
contained in the latest Severance Agreement being used by the
Company.
Any payments required to be made under this Section 8.03 shall
be made to Employee, at the election of the Company, either
within thirty (30) days after the date of Employee's termination
of employment or, at the Company's election, in fifty-two (52)
equal installments, payable at the same time and on the same
basis as was the payment of Employee's Base Salary prior to such
termination.
5. Section 9 of the Employment Agreement is hereby amended to
change "the owners or all" to "the owners of all" in the first sentence of
subsection (a).
6. The Employment Agreement, as amended hereby, is hereby
reaffirmed and restated herein by the undersigned, and said Employment Agreement
is hereby incorporated herein by reference as fully as if set forth in its
entirety in this First Amendment.
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed and Employee has hereunto set his hand this 31st day of August, 2001,
effective as of January 1, 2001.
COMPANY:
AFC ENTERPRISES, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx, President
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxxxx
(SEAL)
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Xxxxx X. Xxxxxxxxx
