AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT ("Agreement") is made and entered
into as of January 1, 1998, by and between DENAMERICA CORP., a Georgia
corporation ("Employer"), and XXXXXXX X. XXX ("Employee").
RECITALS
A. Employee has been employed as Vice President and Chief
Operating Officer of Employer since March 29, 1996, pursuant to that certain
Executive Employment Agreement between Employer and Employee (the "Employment
Agreement"), a copy of which is attached as Exhibit A hereto.
B. Employee and Employer desire to enter into this written
Agreement in order to memorialize certain amendments to the Employment
Agreement, all as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set
forth in this Agreement, the parties hereto hereby agree as follows:
1. Extension of Employment Term; Amendments to Termination Provisions.
Section 3 of the Employment Agreement is hereby amended in its entirety to read
as follows:
3. Term of Employment.
(a) Employment Term. The term of Executive's employment
(the "Employment Period") hereunder shall continue
until December 31, 2000 and from year to year
thereafter, unless and until terminated by either
party giving written notice to the other not less
than 60 days prior to the end of the then-current
term.
(b) Termination Under Certain Circumstances.
Notwithstanding anything to the contrary herein
contained:
(i) Death. Executive's employment shall be
automatically terminated, without notice,
effective upon the date of Executive's
death;
(ii) Disability. If Executive shall fail, for a
period of more than 90 consecutive days, or
for 90 days within any 180 day period, to
perform any of Executive's duties under this
Agreement as the result of illness or other
incapacity, Employer may, at its option,
upon notice to Executive, terminate
Executive's employment effective on the date
of that notice;
(iii) Unilateral Decision by Executive. Executive
may, at his option, upon notice to Employer,
terminate Executive's employment effective
on the date of that notice;
(iv) Termination "For Cause". Employer may, at
its option, upon notice to Executive,
terminate Executive's employment "for cause"
effective on the date of such notice if
Executive engages in an act or acts
involving a crime, moral turpitude, fraud,
or dishonesty; or
(v) Change in Control. In the event of a Change
of Control of Employer as defined in Section
3(d), below, Executive may, at his option,
upon notice to Employer within 30 days after
such Change in Control of Employer,
terminate Executive's employment effective
on the date of the notice.
(c) Result of Termination. In the event of the
termination of Executive's employment pursuant to
Section 3(b)(i), (ii), (iii), (iv) above, Executive
shall receive no further compensation under this
Agreement. In the event of termination of Executive's
employment pursuant to Section 3(b)(v), then (i)
Employer shall pay Executive in a lump sum on the
date of termination an amount equal to his fixed
salary for the longer of one year or the balance of
the then-current term of Executive's employment under
this Agreement as if such employment had not
terminated, and (ii) all of Executive's stock options
that are not vested and exercisable as of the date of
such termination shall immediately vest and become
exercisable in full.
(d) Change in Control. The term "Change in Control" of
Employer shall mean a change in control of a nature
that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934
as in effect on the date of this Agreement or, if
Item 6(e) is no longer in effect, any regulations
issued by the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 that
serve similar purposes; provided that, without
limitation, such a Change in Control shall be deemed
to have occurred if and when:
(i) any person (as such term is used in Sections
13(d) and 14(d)(2) of the Securities
Exchange Act of 1934) other than a current
director or officer of Employer becomes the
"beneficial owner" (as defined in Rule 13d-3
under the Securities Exchange Act of 1934)
directly or indirectly of securities of
Employer representing 20% or more of the
combined voting power of Employer's
then-outstanding securities, except that
this provision shall not apply to any public
or private offering of Employer's common
stock;
(ii) during the period of this Agreement,
individuals who, at the beginning of such
period, constituted the Board of Directors
of Employer (the "Original Directors") cease
for any reason to constitute at least a
majority thereof, unless the election or
nomination for election of each new director
was approved (an "Approved Director") by the
unanimous vote of a Board of Directors
constituted entirely of Original Directors
and Approved Directors;
(iii) a tender offer or exchange offer is made
whereby the effect of such offer is to take
over and control Employer and such offer is
consummated for the ownership of securities
of Employer representing 20% or more of the
combined voting power of Employer's
then-outstanding voting securities;
(iv) Employer is merged, consolidated, or enters
into a reorganization transaction with
another person and as the result of such
merger, consolidation, or reorganization
less than 75% of the outstanding equity
securities of the surviving or resulting
person shall then be owned in the aggregate
by the former stockholders of Employer; or
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(v) Employer transfer substantially all of its
assets to another person or entity that is
not a wholly owned subsidiary of Employer.
Sales of Employer's Common Stock
beneficially owned or controlled by
Executive shall not be considered in
determining whether a Change in Control has
occurred.
2. Amendment to Covenant Not to Compete. Section 6(c) of the Employment
Agreement is hereby amended in its entirety to read as follows:
(c) Competing Business. During the Employment Period and
for a period of 12 months after the termination of
the Employment Period, regardless of who initiates
the termination and for any reason except for
termination resulting from a Change of Control,
Employee shall not, directly or indirectly, for
himself, or on behalf of, or in conjunction with, any
other person(s), company, partnership, corporation,
or governmental entity, in any manner whatsoever,
engage in business with any of the following
entities, or any of their affiliates of franchisees:
Shoney's, Xxx Xxxxx, Cracker Barrel, International
House of Pancakes, Perkin's Family Restaurants,
Village Inn, Xxxxxx'x Big Boy or Country Kitchen.
3. Miscellaneous.
(a) Effect on Employment Agreement. Except as amended
by the terms of this Agreement, the terms and conditions of the Employment
Agreement shall remain in full force and effect.
(b) Indulgences; Waivers. Neither any failure nor any
delay on the part of either party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver shall be binding
unless executed in writing by the party making the waiver.
(c) Controlling Law. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement, shall be
governed by and construed in accordance with the laws of the State of Arizona,
notwithstanding any Arizona conflict of law rules to the contrary.
(d) Binding Nature of Agreement. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns; provided
that because the obligations of Employee hereunder involve the performance of
personal services, such obligations shall not be delegated by Employee. For
purposes of this Agreement, successors and assigns shall include, but not be
limited to, any individual, corporation, trust, partnership, or other entity
which acquires a majority of the stock or assets of Employer by sale, merger,
consolidation, liquidation, or other form of transfer. Employer will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of Employer
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that Employer would be required to perform it if no such
succession had taken place.
(e) Entire Agreement. This Agreement, together with
the Employment Agreement as amended hereby, contains the entire understanding
between the parties hereto with respect to the employment of Employee by
Employer, and supersedes all prior and contemporaneous agreements and
understandings, inducements and conditions, express or implied, oral or written.
The express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof. This Agreement may
not be modified or amended other than by an agreement in writing.
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(f) Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of the parties reflected hereon as the
signatories.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date of the first above written.
Employer: Employee:
DENAMERICA CORP., a Georgia
Corporation
By:
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Name: Xxxxxxx X. Xxx
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Its:
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