EXHIBIT 10.16
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
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This amendment dated as of October 1, 1998 ("First Amendment") is to the
AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") dated as of February
28, 1995 between Quantum Restaurant Group, Inc., now known as Xxxxxx'x
Restaurant Group, Inc. ("MRG") and Xxxxx X. Xxxxxxxxx ("Xxxxxxxxx").
The parties, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, agree as follows:
1. Paragraph 2(a) of the Agreement is hereby deleted and in its place
and stead there is inserted the following:
"(a) As compensation for the services to be rendered hereunder,
until December 31, 1999, MRG shall pay to Xxxxxxxxx a base salary
(as adjusted hereafter pursuant to the next sentence hereof, the
"Base Salary") at the rate of $625,000. per annum, payable in equal
installments at such times as shall be agreed upon by MRG and
Xxxxxxxxx, but no less frequently than monthly. The annual Base
Salary for the Employment Year commencing January 1, 2000, shall
increase at the rate of increase in the Consumer Price Index for
Urban Wage Earners and Clerical Workers, as compiled by the U.S.
Bureau of Labor Statistics for the preceding year (the "CPI"). The
Base Salary may be increased at a faster rate than that of the CPI,
at the discretion of the board of Directors, and depending upon the
profitability and growth of MRG."
2. Paragraph 7(a) of the Agreement is hereby deleted and in its place
and stead there is inserted the following:
"(a) If Xxxxxxxxx is unable to perform his duties by reason of
illness or incapacity (a "Disability") for a continuous period of
more than six (6) months, the compensation otherwise payable to him
during the continued period of such illness or incapacity after
such six (6) month period shall be at the annual rate of
$226,500.00. Xxxxxxxxx'x full compensation shall be reinstated upon
his return to employment and the discharge of his full duties
hereunder. Notwithstanding anything herein to the contrary, if
Xxxxxxxxx shall be absent from his employment by reason of illness
or incapacity for a continuous period of more than eighteen (18)
months, this Agreement shall terminate, except Xxxxxxxxx'x legal
representatives shall be entitled to receive the compensation
herein provided to the last day of the eighteenth month of such
continuous period."
3. Paragraph 7(f) of the Agreement is hereby deleted and in its place
and stead there is inserted the following:
"(f) In the event (i) this Agreement terminates pursuant to Section
7(e) or (ii) Quantum has delivered Quantum Notice's (the date of
such termination or delivery being the "Measuring Date"), MRG
covenants and agrees to pay and be liable for, on the days
originally fixed herein for the payments thereof, and for a period
of sixty (60) months following the Measuring Date, Xxxxxxxxx'x
compensation (except Bonus shall be due only for the calendar year
during which the Measuring Date occurs, and pro rated, on an
annualized basis, for that year), reimbursement to Xxxxxxxxx of the
costs and expenses for the automobile and chauffeur as set forth in
Section 5 at the cost thereof as of the Measuring Date, membership
dues and other reasonable expenses for Xxxxxxxxx to attend meetings
and conferences of the Young President's Organization and other
expenses under the terms of this Agreement as they become due,
together with all reasonable expenses which Xxxxxxxxx may then or
thereafter incur for legal expenses and all other reasonable costs
paid or incurred by Xxxxxxxxx for enforcing the payment of such
amounts. As an alternative, at the election of Xxxxxxxxx made within
thirty days of the Measuring Date, MRG shall pay to him as damages
such a sum as at the time of such termination represents sixty (60)
multiplied by $67,800., together with all reasonable expenses which
Xxxxxxxxx may then or thereafter incur for legal expenses and all
other reasonable costs paid or incurred by Xxxxxxxxx for enforcing
payment of such amounts. Xxxxxxxxx agrees to use his best efforts
to seek alternative employment as an executive earning a salary
reasonably comparable with that being paid to Xxxxxxxxx by MRG,
upon any such termination. Upon and after Xxxxxxxxx'x acquisition
of such alternative employment, (i) MRG's only obligation hereunder
shall be the payment to Xxxxxxxxx of $50,600. per month, or part
thereof, until the 60th month following the Measuring Date, if
Xxxxxxxxx has not made the election referred to in the second
preceding sentence, or (ii) if Xxxxxxxxx has made such election, he
shall repay to MRG an amount equal to the product of [$17,366.]
multiplied by "X", where X equals the difference between 60 and the
number of months between the Measuring Date and the date Xxxxxxxxx
commences such new employment."
4. Paragraph 8(e) of the Agreement is hereby deleted and in its place
and stead there is inserted the following:
"(e) MRG shall, for so long as Xxxxxxxxx is employed by it, procure
and maintain a disability insurance policy (the "Disability
Policy"). The Disability Policy will provide that during the period
commencing after the sixth
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month of a Disability of Xxxxxxxxx and terminating when Xxxxxxxxx
reaches the age of 65, Xxxxxxxxx shall be provided with benefits
equal to approximately $325,000. per annum. Any benefits received
by Xxxxxxxxx pursuant to this Section 8(e) shall be in addition to,
and not exclusive of, any compensation to be paid to Xxxxxxxxx
pursuant to Section 7(a) hereof."
5. In all other respects, the Agreement shall remain in full force and
effect and the parties hereby reconfirm and ratify same.
/s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
XXXXXX'X RESTAURANT GROUP, INC.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx - Exec. V.P.
Attest:
/s/ Xxxxx Xxxxxxxx
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Secretary
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