EXHIBIT 10.78
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT DATED DECEMBER 8, 2000
BETWEEN
AFC ENTERPRISES, INC. (THE "COMPANY")
AND
XXX XXXXXX ("EMPLOYEE")
WHEREAS, the Company and Employee entered into an Employment Agreement
dated as of December 8, 2000, which was amended by that certain First Amendment
to Employment Agreement effective as of January 1, 2001, governing the terms and
conditions of Employee's employment with the Company (the "Employment
Agreement"); 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
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for Cause. The Company may terminate Employee's employment hereunder
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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.
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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
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Xxxx X. Xxxxxxxx, President
EMPLOYEE:
/s/ Xxx Xxxxxx (SEAL)
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Xxx Xxxxxx
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