AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.28
AMENDMENT
TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement
(this "Amendment") is made effective as of January 1, 2009, by and between OSI Restaurant Partners, LLC
(the "Company"), and A. Xxxxxxx
Xxxxx III (the "Executive").
Background
Information
The
parties to this Amendment (the "Parties") entered into an Officer Employment
Agreement as of June 14, 2007 (the "Employment Agreement"), regarding the
Executive's employment relationship with the Company. The Parties
desire to amend the Employment Agreement in order to comply with the final
Treasury Regulations issued under Section 409A of the Internal Revenue Code of
1986, as amended (the "Code"). The Employment Agreement, as amended by this
Amendment, is hereinafter collectively referred to as the
"Agreement."
Amendment of the Employment
Agreement
The Parties hereby acknowledge the
accuracy of the foregoing Background Information and hereby agree as
follows:
1. Definitions. All
capitalized terms used in this Agreement but which are not otherwise defined
herein, shall have the respective meanings given those terms in the Employment
Agreement, as applicable.
2. Bonus. Section 4(b) of the
Agreement is hereby amended by adding the following to the end
thereof:
"Unless
otherwise specified in the Company policies or other governing documents
regarding executive compensation and bonus plans, any bonus awarded to Executive
by Company shall be paid in a single lump sum payment within 90 days after the
end of the performance period."
3. Fringe
Benefits. Section
6 of the Agreement is hereby amended by adding the following to the end
thereof:
"Such benefits shall be provided in
accordance with any applicable policy, program or plan
provisions. Any taxable welfare benefits provided to the Executive
pursuant to this Section 6 that are not ‘disability pay’ or ‘death benefits’
within the meaning of Treasury Regulations Section 1.409A-1(a)(5) (collectively,
the ‘Applicable Benefits’) shall be subject to the following requirements in
order to comply with Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code"). The amount of any Applicable Benefits provided
during one taxable year shall not affect the amount of the Applicable Benefits
provided in any other taxable year, except that with respect to any Applicable
Benefits that consist of the reimbursement of expenses referred to in Code
Section 105(b), a limitation may be imposed on the amount of such reimbursements
as described in Treasury Regulations Section 1.409A-3(i)(iv)(B). To
the extent that any Applicable Benefits consist of the reimbursement of eligible
expenses, such reimbursement must be made on or before the last day of the
calendar year following the calendar year in which the expense was incurred, and
Company shall not be obligated to
reimburse
any expense for which the Executive fails to submit an invoice or other
documented reimbursement request at least thirty (30) business days before the
end of the calendar year next following the calendar year in which the expense
for any such reimbursement was incurred. Further, no Applicable
Benefits may be liquidated or exchanged for another benefit."
4. Expenses. Section 7
of the Agreement is hereby amended by adding the following to the end
thereof:
"If any reimbursements under this
provision are taxable to the Executive, such reimbursements shall be paid on or
before the end of the calendar year following the calendar year in which the
reimbursable expense was incurred, and the Company shall not be obligated to pay
any such reimbursement amount for which Executive fails to submit an invoice or
other documented reimbursement request at least thirty (30) business days before
the end of the calendar year next following the calendar year in which the
expense was incurred. Such expenses shall be reimbursable only to the
extent they were incurred during the term of the Agreement. In
addition, the amount of such reimbursements that the Company is obligated to pay
in any given calendar year shall not affect the amount the Company is obligated
to pay in any other calendar year. Further, Executive may not
liquidate or exchange the right to reimbursement of such expenses for any other
benefits."
5. Termination. Section
8 of the Agreement is hereby amended by adding the following sub-section (g) to
the end thereof:
"(g)
Termination of Employment for all purposes under this Agreement will be
determined to have occurred in accordance with the ‘separation from service’
requirements of Code Section 409A and the Treasury Regulations and other
guidance issued thereunder, and based on whether the facts and circumstances
indicate that Company and Executive reasonably anticipated that no further
services would be performed after a certain date or that the level of bona fide
services Executive would perform after such date (as an employee or as an
independent contractor) would permanently decrease to no more than 20 percent of
the average level of bona fide services performed over the immediately preceding
36-month period (or actual period of service, if less)."
6. Severance. Section
9(b) of the Agreement is hereby amended by adding the following to the end
thereof:
"Such
benefits shall be provided in accordance with any applicable policy, program or
plan provisions. Any taxable welfare benefits provided to the
Executive pursuant to this Section 9 that are not Applicable Benefits shall be
subject to the following requirements in order to comply with Code Section
409A. The amount of any Applicable Benefits provided during one
taxable year shall not affect the amount of the Applicable Benefits provided in
any other taxable year, except that with respect to any Applicable Benefits that
consist of the reimbursement of expenses referred to in Code Section 105(b), a
limitation may be imposed on the amount of such reimbursements as described in
Treasury Regulations Section 1.409A-3(i)(iv)(B). To the extent that
any Applicable Benefits consist of the reimbursement of eligible expenses, such
reimbursement must be made on or before the last day of the calendar year
following the calendar year in which the expense was incurred, and Company shall
not be obligated to reimburse any expense for which the Executive fails to
submit an invoice or other documented reimbursement request at least thirty (30)
business days before the end of the calendar year next following the calendar
year in which the expense for any such reimbursement was
incurred. Further, no Applicable Benefits may be liquidated or
exchanged for another benefit."
7. Accrued
Bonus. Section
9(c) of the Agreement is hereby amended by adding the following to the end
thereof:
"Such
bonus payments shall be paid in a single lump sum payment within 90 days after
the end of the fiscal year in which such termination of employment
occurred."
8. Fees
and Expenses. Section 30 of the
Agreement is hereby amended by adding the following to the end
thereof:
"If any
reimbursements under this provision are taxable to the Executive, such
reimbursements shall be paid on or before the end of the calendar year following
the calendar year in which the reimbursable expense was incurred, and the
Company shall not be obligated to pay any such reimbursement amount for which
Executive fails to submit an invoice or other documented reimbursement request
at least thirty (30) business days before the end of the calendar year next
following the calendar year in which the expense was incurred. Such
expenses shall be reimbursable only to the extent they were incurred during the
term of the Agreement. In addition, the amount of such reimbursements
that the Company is obligated to pay in any given calendar year shall not affect
the amount the Company is obligated to pay in any other calendar
year. In addition, Executive may not liquidate or exchange the right
to reimbursement of such expenses for any other benefits."
9. 280G. Section 32 of the
Agreement is hereby amended by adding the following to the end
thereof:
"Any such
gross-up payment provided for under this Section shall be made as soon as
feasible and in all cases no later than the end of the calendar year following
the year in which the applicable taxes were remitted to the applicable taxing
authority."
10. Section 409A. Section
36 is hereby added to the end of the Agreement to read as follows:
"36. Code Section
409A. The Company makes no representation as to whether any
such payment or any part thereof constitutes or may constitute non-qualified
deferred compensation. Neither the Company nor any of its directors, officers,
employees, agents or professional advisors shall have any liability to the
Executive or any other person or any amounts incurred by Executive or any other
such person by reason of the determination made by the Board of Managers
pursuant to this paragraph or any action taken or omitted by the Board, the
Company, or any of the Company’s managers, officers, employees, agents or
professional advisors in the course of, or as a result of, making such
determination. For purposes of this Agreement, all rights to payments and
benefits hereunder shall be treated as rights to receive a series of separate
payments and benefits to the fullest extent allowed by Code Section
409A."
11. The terms
and conditions of the Agreement between Company and Executive that are
unaffected by this Amendment remain in full force and effect.
[Signatures
on next page.]
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed
this Amendment on the 31st day of
December, 2008.
A. XXXXXXX XXXXX,
III OSI
RESTAURANT PARTNERS, LLC
/s/ A. Xxxxxxx Xxxxx,
III___ By:
/s/ Xxxxxx X.
Kadow__________
Xxxxxx X. Xxxxx
Its: Executive Vice
President_______
023120, 000004,
102644484.4
