FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.57
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement (the “Amendment”) is made as of the
30th day of September, 2009, between BURGER KING CORPORATION, a Florida
corporation (the “Company”), and Xxxxx Xxxxxxxx (“Executive”). All capitalized terms
used herein shall have the meanings ascribed to them in the Employment Agreement,
unless otherwise defined herein.
WHEREAS, the Company and Executive entered into that certain Employment Agreement
dated as of August 22, 2006 (the “Employment Agreement”); and
WHEREAS, The Company and Executive desire to amend the Employment Agreement, on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive hereby agree as follows:
1. International Assignment. The assignment described in that certain
International Assignment Letter between the Company, Burger King Europe GmbH and
Executive, dated August 22, 2006, terminated effective September 30, 2009.
2. Position. From and after October 1, 2009 (the “Effective Date”), Section
2(b), line 2, of the Employment Agreement is amended to provide that Executive’s
position shall be changed from “Executive Vice President and President, EMEA” to
“Executive Vice President”.
3. Signing Bonus. Executive will receive a one-time signing bonus in the
gross amount of $35,000 (the “Signing Bonus”), payable at the time of the
Company’s first regular payroll following November 1, 2009. Executive and the Company
agree that the Signing Bonus is not part of Executive’s Base Salary.
4. Temporary Housing; Furniture and Household Goods Storage. From and after
the Effective Date, the Company will provide Executive with the following benefits:
(a) Temporary Housing. The Company will provide Executive with temporary
furnished housing accommodations in the Miami-Dade metropolitan area, in accordance
with the Company’s Relocation Policy, except that such temporary housing
accommodations will begin on the Effective Date and end on the Termination Date. The
income imputed to Executive, if any, for the cost of these temporary housing
accommodations will be grossed-up for applicable taxes. Any such gross-up will be
paid within the time period proscribed by Xxxxxxx 000X xx xxx Xxxxxx Xxxxxx Internal
Revenue Code of 1986, as amended (the “Code”). Executive will be responsible for any
damage to the housing accommodations caused by Executive and/or his visitors.
(b) Furniture and Household Goods Storage. The Company will pay or
reimburse Executive for the reasonable cost of storage of Executive’s furniture and
household goods at a single location in the United States beginning on the Effective
Date and continuing until the earlier of (i) one (1) month following the termination
of Executive’s employment with the Company or (ii) fourteen (14) months following the
Effective Date.
5. Annual Bonus — Calculation of Overall Business Factor for Fiscal Year 2010.
The following provision is added to the end of Section 4 of the Agreement: “If
Executive remains employed by the Company for the Company’s entire 2010 fiscal year
(which ends on June 30, 2010), then the overall business performance factor which the
Company will utilize to calculate Executive’s Annual Bonus pursuant to the 2010
Company’s Restaurant Support Incentive Program will be measured as follows: (a) from
July 1, 1009 through September 30, 2009, 50% on a worldwide basis and 50% on the
Company’s Europe, Middle East and Africa region and (b) from October 1, 2009 through
June 30, 2010, 100% on a worldwide basis. Executive’s eligibility for an Annual Bonus
if Executive’s employment with the Company is terminated prior to June 30, 2010 will
be determined in accordance with Sections 8(f)(i)(A) or Section 8(f)(ii) of the
Agreement (as modified by this Amendment), as applicable.”
6. Equity Incentives. Section 5 of the Employment Agreement is amended to
provide that in lieu of Executive’s participation in the Company’s annual equity grant
program for the Company’s 2010 fiscal year, Executive will receive the following grant
pursuant to the terms and conditions of the Equity Plan: a grant of 13,088 options to
purchase the common stock of Holdings, each option having an exercise price equal to
the fair market value (as defined in the Equity Plan) of one share of common stock of
Holdings on the grant date, which options will become fully vested on August 26, 2010,
provided that Executive remains in the continuous employment of the Company from the
date of the grant to the vesting date (the “Option Award”). Subject to
Holdings’ Equity Grant Policy, the Option Award grant date will be November 1, 2009.
Additionally, the Option Award will be subject to all applicable provisions of the
Equity Plan and will be evidenced by an award agreement in accordance with the terms
of the Equity Plan.
7. Retention Bonus. Section 7(c)(ii) and Section 7(c)(iii) of the Employment
Agreement are deleted in their entirety and are replaced with the following:
“(ii) Commencing on the Effective Date and continuing until the
earlier of (i) the termination of the Employment Period and (ii)
September 30, 2011, the Company shall pay Executive a cash bonus at an
annualized rate of ONE HUNDRED FIFTY THOUSAND and 00/100 DOLLARS
($150,000.00), payable in equal installments of $5,769.23 each, in
advance, at the time of the Company’s regular payroll (the
“Retention Bonus”). Notwithstanding anything in this Section
7(c)(ii) to the contrary, Executive will receive each respective
installment under this Section 7(c)(ii) if and only if Executive is
still employed by the Company on each applicable payment date. The
Retention Bonus shall not be a part of Executive’s Base Salary.”
8. Payment Upon Certain Terminations. Section 8(f)(i) of the Employment
Agreement is deleted in its entirety and is replaced with the following:
“(i) In the event of a termination of Executive’s employment by the
Company Without Cause or by Executive’s resignation from employment for
Good Reason during the Employment Period, the Company shall pay to
Executive, within thirty (30) days of the Date of Termination, his (x)
Base Salary through the Date of Termination, to the extent not
previously paid, (y) reimbursement for any unreimbursed business
expenses incurred by Executive prior to the Date of Termination that are
subject to reimbursement pursuant to Section 7 (a) and (z) payment for
vacation time accrued as of the Date of Termination but unused (such
amounts under clauses (x), (y) and (z), collectively, the “Accrued
Obligations”). In addition, in the event of any such termination of
Executive’s employment, if Executive executes and delivers to the
Company, within the applicable period of time provided for under the Age
Discrimination in Employment Act of 1967, as amended, and in no event
later than sixty (60) days following the Executive’s Date of Separation
from Service, an irrevocable Separation Agreement and General Release
substantially in the form approved by the Company, Executive shall
be entitled to a portion of Executive’s Annual Bonus for the fiscal year
of the Company during which Executive was employed that includes the
Date of Termination, as follows (the “Pro-Rata Bonus”):
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(A) If the termination occurs during the Company’s 2010 fiscal
year, then the portion of Executive’s Annual Bonus shall equal the
product of (1) seventy percent (70%) of Executive’s Base Salary during
such fiscal year, multiplied by (2) a fraction, the numerator of which
equals the number of days of Executive’s employment with the Company
during the 2010 fiscal year, and the denominator of which equals 365.
If a Pro-Rata Bonus is due to Executive under this Section 8(f)(i)(A) as
a result of Executive’s resignation for Good Reason, then the Pro-Rata
Bonus will be paid to Executive at the time of the Company’s second
regular payroll following the six (6) month anniversary of the Date of
Termination. If a Pro-Rata Bonus is due to Executive under this Section
8(f)(i)(A) as a result of the Company’s termination of the Executive
Without Cause, then the Pro-Rata Bonus will be paid to Executive at the
time of the Company’s second regular payroll following the Date of
Termination.
(B) If the termination occurs during any year following the
Company’s 2010 fiscal year, then the portion of Executive’s Annual Bonus
shall equal the product of (1) the Annual Bonus that would have been
payable to Executive for such fiscal year had Executive remained
employed for the entire fiscal year, determined based on the extent to
which the Company actually achieves the performance goals for such year
established pursuant to Section 5, multiplied by (2) a fraction, the
numerator of which is equal to the number of days in such fiscal year
that precede the Date of Termination and the denominator of which is
equal to 365, such amount to be payable to Executive on the date (the
“Bonus Payment Date”) annual bonuses for such fiscal year are
actually paid by the Company to its active executives, but in no event
later than two and a half (2 1/2) months following the end of the
applicable fiscal year in which such Annual Bonus was earned.
Executive shall not have a duty to mitigate the costs to the
Company under this Section 8(f)(i), nor shall any payments from the
Company to Executive of Pro-Rata Bonus be reduced, offset or canceled by
any compensation or fees earned by (whether or not paid currently) or
offered to Executive by a subsequent employer or other Person (as
defined in Section 19(k) below) for which Executive performs services,
including but not limited to consulting services.”
9. Payment Upon Executive’s Resignation During Fiscal Year 2010 without Good
Reason. Section 8(f)(ii) of the Employment Agreement is amended to provide that
if Executive’s employment terminates due to Executive’s resignation from employment
without Good Reason during the Company’s 2010 fiscal year, and if Executive executes
and delivers to the Company, within the applicable period of time provided for under
the Age Discrimination in Employment Act of 1967, as amended, and in no event later
than sixty (60) days following the Executive’s Date of Separation from Service, an
irrevocable Separation Agreement and General Release substantially in the form
approved by the Company, then in addition to the Accrued Obligations, Executive shall
be entitled to a Pro-Rata Bonus for such 2010 fiscal year, such payment to be paid to
Executive at the time of the Company’s second regular payroll following the six (6)
month anniversary of the Date of Termination. All other provisions set forth in
Section 8(f)(ii) shall remain unchanged.
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10. Miscellaneous. Except as expressly modified by this Amendment, the
Employment Agreement shall remain in full force and effect. This Amendment may be
executed in two (2) or more counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment to Employment
Agreement on the date first set forth above.
| BURGER KING CORPORATION |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Executive Vice President and Chief Human Resources Officer | |||
| Executive |
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| /s/ Xxxxx Xxxxxxxx | ||||
| Xxxxx Xxxxxxxx | ||||
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