Employment Agreement [Amendment No. 2] - AFC Enterprises Inc. and Dick A. Holbrook
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT DATED DECEMBER 8, 2000
BETWEEN
AFC ENTERPRISES, INC. (THE "COMPANY")
AND
DICK R. HOLBROOK ("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 9" 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 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 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 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 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.
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4. Section 8.03 of the Employment Agreement is being revised to clarify
that: (A) the Company may terminate Employee without Cause; (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 or the Employee terminates the Employment Agreement
pursuant to Section 1 of the Employment Agreement, then the Employee will be
entitled to certain post-employment payments; and (C) the Company may elect to
satisfy its post-employment payment and benefit obligations in a lump sum.
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, or in the event Employee
terminates this Agreement pursuant to Section 1 hereof, 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 two (2) times Employee's Base Salary at
the time of termination; (b) a payment equal to two (2) 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); (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; and (d) continuation of the employee benefits
then being provided to Employee under Section 6 of this Agreement
(excluding Section 6.06) for the remaining term of this Agreement as
of the day immediately preceding the effective date of termination;
provided, however, that at the Company's election, the Company may, in
complete discharge of its obligations hereunder with respect to any or
all of such benefits, provide to Employee a lump sum cash payment in
lieu of such benefit or benefits based upon the then current one (1)
year cost of such benefit or benefits to the Company. As a condition
precedent to the requirement of Company to make such payments, grant
such accelerated vesting or provide such benefit or benefits, 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.
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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. Section 11.03 of the Employment Agreement is being amended to extend
the survival period of the indemnification obligations of the Company from four
(4) to twenty (20) years and to eliminate the condition that the Employee's
employment be terminated for a reason other than for Cause. Therefore, Section
11.03 of the Employment Agreement is hereby deleted in its entirety and the
following new Section 11.03 is inserted in lieu thereof:
11.03 Survival. The provisions of this paragraph 11 shall survive
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the termination of this Agreement for a period of twenty (20) years.
7. 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.
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/ Frank J. Belatti
----------------------------
Frank J. Belatti, Chief Executive Officer
EMPLOYEE:
/s/ Dick R. Holbrook (SEAL)
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Dick R. Holbrook
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