AMENDMENT NO. 1, dated as of September 1, 2010 (this “Amendment”), to the Amended and Restated Employment Agreement (the “Employment Agreement”) by and between Burger King Corporation, a Florida corporation (together with any successor thereto, the...
Exhibit 10.64
EXECUTION COPY
AMENDMENT NO. 1, dated as of September 1, 2010 (this
“Amendment”), to the Amended and Restated Employment Agreement (the
“Employment Agreement”) by and between Burger King Corporation, a
Florida corporation (together with any successor thereto, the
“Company”) and Xxxx Xxxxx (the “Executive”), dated as of
December 8, 2008.
WHEREAS, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated
as of September 1, 2010, by and among Burger King Holdings, Inc., a Delaware corporation and parent
company of the Company (“BHI”), Blue Acquisition Holding Corporation, a Delaware corporation
(“Parent”), and Blue Acquisition Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent (“Merger Sub”), Merger Sub will merge with and into BHI (the
“Merger”) and BHI will become a wholly owned subsidiary of Parent;
WHEREAS, Executive commenced employment with the Company on September 27, 2004;
WHEREAS, the parties to the Merger Agreement desire that Executive continue to perform
services for the Company following the Merger on the terms and conditions set forth in the
Employment Agreement, as herein amended; and
WHEREAS, subject to consummation of the Merger, the Company and Executive wish to make
certain amendments to the Employment Agreement.
NOW, THEREFORE, the Company and Executive hereby agree that, subject to and effective upon
consummation of the Merger and provided that the Executive remains continuously employed until the
Effective Time of the Merger, the Employment Agreement shall be amended as follows (it being
understood that capitalized terms that are not defined herein shall have the meanings ascribed to
such terms in the Employment Agreement):
1. Section 3(a) of the Employment Agreement is hereby amended by adding the following
paragraphs at the end thereof:
“Notwithstanding the foregoing, from and after the Effective Time (as defined in
the Agreement and Plan of Merger, dated as of September 1, 2010, by and among Burger
King Holdings, Inc., Blue Acquisition Holding Corporation (“Parent”), and
Blue Acquisition Sub, Inc. (the “Merger Agreement”)), the Employment Period
shall be a period of six (6) months commencing at the Effective Time (the
“Transition Period”); provided, that the Transition Period may be
extended by mutual agreement of the Company and Executive. During the Transition
Period, Executive shall be entitled to receive her Base Salary under Section 4
hereof, a Pro-Rata Transition Period Bonus under Section 5(b) hereof, and the various
benefits described in Sections 7 and 8 hereof each as in effect immediately prior to
the Transition Period.
The Company and Executive agree that an amount equal to $499,383 in respect of
Executive’s potential entitlement under Section 9(f)(i)(A) hereof shall be deposited
in a “rabbi trust” for the benefit of Executive on the date on which the Effective
Time occurs, such trust to contain the terms and conditions consistent with those set
forth on Exhibit A hereto and other customary terms. The Company and the Executive
acknowledge and agree that if the Executive remains continuously employed with the
Company through the end of the Transition Period, or if during the Transition Period
Executive’s employment is terminated by reason of death or Disability or Without
Cause or Executive resigns for Good Reason, Executive (or, if applicable, her estate)
shall become entitled to the Accrued Obligations, the payments under Section
9(f)(i)(A), continued benefits under Section 9(f)(i)(C) and, subject to the terms
thereof, outplacement services under Section 9(f)(i)(D), so long as the Executive
otherwise satisfies the requirements of such section, including the requirement that
Executive executes and does not revoke the Separation Agreement and General Release
described therein. For the avoidance of doubt, if the Executive (i) resigns without
Good Reason or (ii) is terminated for Cause prior to the end of the Transition
Period, the Executive shall not be entitled to any payments or benefits pursuant to
Section 9(f)(i)(A).”
2. Section 3(b) of the Employment Agreement is hereby replaced in
its entirety with the following:
“(b) Position and Responsibilities. During the Transition Period, Executive
shall serve as General Counsel and shall perform transition services of an executive
nature on behalf of the Company and its affiliates, as are reasonably assigned to her
by the Chief Executive Officer and the Board of Directors of the Company (the
“Board”).”
3. Section 5 of the Employment Agreement is hereby amended to
provide that the current language therein shall be contained in a new Section 5(a).
4. A new Section 5(b) shall be added to the Employment Agreement
to read as follows:
“(b) In lieu of the Annual Bonus described in Section 5(a) above, Executive shall be
entitled to receive a pro-rata annual bonus for services performed during the
Transition Period, such bonus to be based on the number of days employed during the
Transition Period (the “Pro-Rata Transition Period Bonus”) and to be
calculated on an annualized basis as seventy percent (70%) of Executive’s Base
Salary, provided that the Executive continues to be employed through the end of the
Transition
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Period. In the event that, during the Transition Period, Executive’s employment is
terminated by reason of Executive’s death, Disability or Without Cause or Executive
resigns for Good Reason, Executive shall be treated as having performed services
through the end of the Transition Period. The Pro-Rata Transition Period Bonus shall
be paid to Executive within five (5) days following the end of the Transition
Period.”
5. A new Section 5(c) shall be added to the Employment Agreement
to read as follows:
“(c) In connection with the consummation of the Merger (as defined in the Merger
Agreement), Executive shall (x) become entitled to receive a lump sum cash payment
representing a pro-rata target annual bonus for the fiscal year of the Company in
which the Merger occurs (the “Pro-Rata FY 2011 Bonus”) calculated from July
1, 2010 through the date on which occurs the Effective Time, and (y) be awarded an
aggregate bonus of $1,130,619 in respect of her contributions toward the successful
completion of the Merger and her agreement to perform services during the Transition
Period (the “Transition Bonus”), in each case provided that the Executive
remains continuously employed until the Effective Time. The Pro-Rata FY 2011 Bonus
and the Transition Bonus shall be paid within two (2) days following the Effective
Time.”
6. Section 6 of the Employment Agreement shall cease to apply as of
the Effective Time. In connection with the Merger, Executive shall have the rights
described in Section 3.04 of the Merger Agreement with respect to her outstanding equity
awards; provided, however, that Executive agrees that the equity awards
granted to
Executive on August 25, 2010 shall be subject to the terms and conditions described in
Section 7.05(d)(II) of the Company Disclosure Schedule to the Merger Agreement.
7. The definition of Good Reason in Section 9(d) of the Employment
Agreement shall be amended by adding the following proviso immediately before the
period in the last sentence in Section 9(d):
“; provided, further, that Executive hereby acknowledges and agrees that none of: (i)
the consummation of the Merger, (ii) any diminution in duties as a consequence
thereof or associated therewith not inconsistent with Section 3(b) hereof, or (iii)
the execution of this Amendment shall constitute Good Reason. On and after the
Effective Time, the Executive shall have Good Reason to terminate her service
relationship with the Company only on account of: (i) the assignment to Executive by
the Company of duties that are materially inconsistent with her position as a senior
executive of the Company, (ii) the failure to pay the Executive the amounts or
provide the benefits required to be paid or provided pursuant to this Agreement or
(iii) the Company, other than at the initiative of Executive, requiring Executive to
permanently be based anywhere that is more than 75 miles from the Company’s current
principal office in Miami,
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Florida; provided that Executive shall (A) have given the Company notice of the event or
events constituting Good Reason within 30 days of the date of such occurrence, (B) the
Company shall have failed to cure such event or events within thirty (30) business days
after receipt of such notice and (C) the Executive must actually terminate her employment
within 5 days following the expiration of such cure period.”
8. Section 9(f)(i)(A) of the Employment Agreement is hereby
replaced in its entirety with the following:
“(A) payments of an amount equal to the sum of (x) Executive’s Base Salary, (y) the annual
amount of the Benefits Allowance described in Section 7(b), and (z) if such Separation from
Service occurs prior to the end of the Transition Period, an amount equal to the remaining
amount of Base Salary and Benefits Allowance that Executive would have received if
Executive had performed services through the end of the Transition Period, which amount
shall be payable in equal installments, in accordance with the Company’s regular payroll
policies, during the period beginning on the first business day immediately following the
six (6) month anniversary of the Date of Separation from Service
and ending on the one (1)
year anniversary of the Date of Separation from Service;
9. The Employment Agreement is hereby amended to add the
following new flush paragraph immediately following Section 9(f)(i)(A):
“Notwithstanding the foregoing, the portion of the amount described in Section 9(f)(i)(A)
above (such amount, the “Severance”) equal to two times (2x) the lesser of (1) the
sum of Executive’s “annualized compensation” within the meaning of Code Section 409A and
(2) the maximum amount that may be taken into account under a qualified plan pursuant to
Code Section 401(a)(17) (i.e., with respect to 2010, $245,000) (such portion, the “Safe
Harbor Amount”) shall be payable within two (2) days following the Date of Separation
from Service. The remaining portion of the Severance, if any, shall be payable as set forth
in Section 9(f)(i)(A) above; provided, that the Safe Harbor Amount shall reduce the
Severance installments to be paid during the payment period described in Section 9(f)(i)(A)
in chronological order such that any payment to be made during month seven (7) following
the Date of Separation from Service shall be reduced first, any payment to be made during
month eight (8) following the Date of Separation from Service shall be reduced next, and so
on until 100% of the Safe Harbor Amount has been fully taken into account.”
10. Section 9(f)(i)(B) of the Employment Agreement shall cease to
apply as of the Effective Time.
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11.
Section 9(f)(i)(C) of the Employment Agreement is hereby
amended to replace the words “one year” with the word “second”.
12. Section 10(b) of the Employment Agreement is hereby amended
by replacing the term “one (1) year” with the term “two (2) year”.
13. Section 10(c) of the Employment Agreement is hereby amended
by replacing the term “one (I)-year” with the term “two (2) year”.
14. The Employment Agreement is hereby amended by attaching the
following as a new Exhibit A:
“Terms and Conditions Applicable to Trust
| • | Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the Employment Agreement to which this Exhibit A is attached. | ||
| • | Amounts will be released by the trustee on each payment date unless the trustee shall have received, no later than the day prior to the payment date, a good faith objection from Parent or the Company (the grounds for such good faith objection shall be limited to a termination of Executive’s employment for Cause or Executive’s resignation other than for Good Reason) or the trustee has been notified that Parent or the Company is insolvent or has filed for bankruptcy, in which case the amounts shall not be released and the trustee shall notify Executive. In the event that Executive’s employment is terminated for Cause or Executive resigns other than for Good Reason, amounts held in trust for the benefit of Executive shall be promptly released and returned to the Company. | ||
| • | The trustee of the trust shall be authorized to invest the amounts solely in obligations of the United States Government and its agencies which are backed by the full faith and credit of the United States Government or in any mutual fund, common trust fund or collective investment fund which invests solely in such obligations. | ||
| • | The trustee shall be a third-party, FDIC-insured financial institution.” |
15. The Employment Agreement, except as expressly modified hereby,
shall remain in full force and effect.
16. This Amendment shall become effective, and is expressly
contingent, upon the occurrence of the Effective Time and the Executive remaining
continuously employed through the Effective Time and in the event that the Effective
Time does not occur, this Amendment shall be void ab initio.
17. This Amendment shall be governed by and construed in
accordance with the laws of the State of Florida without reference to principles of
conflicts of laws.
[signature page follows]
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Intending to be legally bound hereby, the parties have executed this Amendment as of the date
first set forth above.
| BURGER KING CORPORATION, |
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| by | /s/ Xxxx X. Xxxxxxx | |||
| EXECUTIVE, |
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| /s/ Xxxx Xxxxx | ||||
| Xxxx Xxxxx | ||||
