Attached files
Exhibit
10.28
CKE
Restaurants, Inc.
Amendment
No. 4
to
Employment
Agreement
This
Amendment No. 4 (the “Amendment”) to Employment Agreement is entered into as of
January 28, 2010 and effective on the earlier of April 15, 2010, or seven days
after the filing of the Company’s Form 10-K for Fiscal 2010, by and between CKE
Restaurants, Inc. (the “Company”) and Theodore Abajian (the
“Employee”).
RECITALS:
A. The
Company and the Employee entered into an Employment Agreement, dated as of
January 2004, and amended on December 6, 2005, October 12, 2006 and December 16,
2008 (collectively, the “Agreement”).
B. The
Company and the Employee now desire to further amend the Agreement as set forth
below.
C. The
primary purposes of this Amendment will be to (i) extend the annual cash bonus
formula for Fiscal 2011, (ii) reallocate Performance Shares from
performance-based vesting to time-based vesting for the grants on October 12,
2009 and 2010, (iii) establish new vesting criteria for all Performance Shares
which have not vested based upon the Company’s performance through Fiscal 2010,
whether theretofore or thereafter granted, and (iv) restrict the sale of the
grants referenced in (ii) above until January 30, 2014. All
Performance Shares granted prior to the completion of Fiscal 2010 will vest
in accordance with the existing terms of the Agreement through Fiscal
2010.
AGREEMENT
1. Other Compensation and
Fringe Benefits. Section 4(e) is hereby amended to extend the
bonus provided for therein to fiscal year 2011.
2. Other Compensation and
Fringe Benefits. Section 4, Clause (f) of the Agreement, and
the Exhibits referenced therein, are hereby amended and restated in their
entirety as follows:
“(f) Restricted
Shares.
(i) Employee
shall be granted, subject to items (iii) and (iv) below, “restricted shares” as
provided on Exhibits A and B attached hereto. The “restricted shares”
provided for on Exhibit A are hereinafter referred to as “Time-Based Shares,”
the “restricted shares” provided for on Exhibit B are hereinafter referred to as
“Performance Shares” and, collectively, the Time-Based Shares and the
Performance Shares are hereinafter referred to as the “Restricted
Shares.” The amount of Restricted Shares, the dates of grant
(hereinafter, each date of grant on Exhibits A and B is referred to as “Date of
Grant”), the terms and conditions of vesting and other provisions relating
thereto are set forth on the respective Exhibits. All Restricted
Shares shall be granted under one or more of the Company’s equity-based plans
approved by the Company’s stockholders (a “Company Equity Plan”), as determined
by the Company’s Compensation Committee at the time of grant, except as provided
in Sections 7(b)(vi) and 8(b)(vi) below.
(ii) The
purchase price for all Restricted Shares shall be $0.00.
(iii) All
grants provided for on Exhibits A and B shall be subject to the availability of
“restricted shares” under a Company Equity Plan on the Date of Grant, except as
provided in Sections 7(b)(vi) and 8(b)(vi) below. If there are not
enough “restricted shares” available under a Company Equity Plan on any Date of
Grant, (a) any short-fall shall be allocated first to Performance Shares
and then to Time-Based Shares, and (b) the Company shall have no obligation to
make any other form of compensation available to the Employee in lieu of any
short-fall. The Company shall use its best efforts to cause the
stockholders of the Company to approve either an amendment to any current
Company Equity Plan or the adoption of a new Company Equity Plan, to assure
that, at any given time, “restricted shares” are available to fulfill the grants
provided for on Exhibits A and B.
(iv) The
Employee must be an eligible participant under a Company Equity Plan on the Date
of Grant in order to be entitled to a grant of Restricted Shares on that date,
except as provided in Sections 7(b)(vi) and 8(b)(vi) below.
(v) All
grants of Restricted Shares shall be on the form of agreement being used on the
respective Date of Grant, containing, however, the specific terms set forth in
this Amendment.
(vi) All
grants of Restricted Shares pursuant to this Amendment shall be administered
pursuant to the terms and provisions of the Company Equity Plan under which they
were granted.
(vii) The
Employee agrees that he may only sell Restricted Shares after they vest, as
follows, subject to compliance with all securities’ laws:
(a) Restricted
Shares necessary to pay any income taxes (including withholding taxes) on the
vesting thereof;
(b) For
Restricted Shares whose Date of Grant is October 12, 2006 and October 12, 2007,
any time on or after the later of two years from their date of vesting or
October 12, 2011;
(c) For
Restricted Shares whose Date of Grant is October 12, 2008, any time on or after
October 12, 2011;
(d) For
Restricted Shares whose Date of Grant is October 12, 2009, any time on or after
January 30, 2014;
(e) For
Restricted Shares whose Date of Grant is October 12, 2010, any time on or after
January 30, 2014;
(f) With
the written approval of the Company’s Compensation Committee;
and/or
(g) Any
time on or after the death, disability or termination without cause of Employee,
or after a Change In Control (as defined in
Section 8(a)(ii)).”
3. Definitions. Terms
used but not defined in this Amendment shall have the respective meanings
assigned to them in the Agreement.
4. Counterparts. This
Amendment may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which shall constitute one
Amendment.
5. Terms and Conditions of
Agreement. Except as specifically amended by this Amendment,
all terms and conditions of the Agreement shall remain in full force and
effect.
[See
Next Page for Signatures]
IN
WITNESS WHEREOF, this Amendment is executed by the undersigned as of the date
first above written.
| /s/ Theodore Abajian | ||
| Theodore Abajian | ||
| CKE Restaurants, Inc. | |||
| By: | /s/ Peter Churm | ||
| Peter Churm, | |||
| Director and Chairman of the Compensation | |||
| Committee of the Board of Directors | |||
Exhibit
A
Time-Based
Shares
1. The
following Time-Based Shares have been, and will be, granted at the times and in
the amounts, as follows:
|
Date
of Grant:
|
Number
of Time-Based Shares:
|
|
|
October
12, 2006:
|
15,000 (previously
granted)
|
|
|
October
12, 2007:
|
15,000 (previously
granted)
|
|
|
October
12, 2008:
|
15,000 (previously
granted)
|
|
|
October
12, 2009:
|
15,000 (previously
granted)*
|
|
|
October
12, 2010:
|
30,000
|
|
|
Total:
|
90,000*
|
|
____________
* To be
increased as described in Section 2 below.
2. After the
completion of Fiscal 2010, the number of Time-Based Shares and Performance
Shares granted on October 12, 2009, which was 75,000 in the aggregate (the “2009
Grant”), shall be reallocated between Time-Based Shares and Performance
Shares. In this regard, the Time-Based Shares in the 2009 Grant shall
be increased in accordance with the following formula (the “Time-Based Share
Adjustment”):
N =
(.4*Y)-15,000
N = the
number of additional Time-Based Shares to be added to the 2009
Grant.
Y =15,000
+60,000 (which represents the number of Performance Shares granted on October
12, 2009) - Z.
Z = the
number of Performance Shares granted on October 12, 2009 that have vested as of
the end of Fiscal 2010.
The
reference to “Fiscal” is to the Company’s fiscal year ending in the referenced
calendar year.
The
Restricted Share agreement evidencing the initial grant of the 15,000 Restricted
Shares shall be amended accordingly to reflect the additional Restricted Shares
resulting from the Time-Based Share Adjustment and the vesting thereof as
provided in Section 3 below.
3. Each
number of Time-Based Shares referenced above shall vest over four years from the
Date of Grant, with 25% of such Time-Based Shares vesting on each of the four
anniversary dates immediately following the respective Date of
Grant. For example, the grants on the October 12, 2008 shall
vest 25% on each of October 12, 2009, 2010, 2010 and 2012, the grants on October
12, 2009 shall vest 25% on each of October 12, 2010, 2011, 2012 and 2013, and so
forth. For vesting purposes, any Time-Based Shares added to the 2009
Grant as a result of the Time-Based Share Adjustment shall vest evenly over the
same schedule as the 15,000 Time-Based Shares initially granted on October 12,
2009.
Exhibit
B
Performance
Shares
1. The
following Performance Shares have been, and will be, granted at the times and in
the amounts, and have the respective three-year performance periods (each a
“Performance Period” and each Fiscal year therein is sometimes referred to as a
“Performance Year”), as follows:
|
Date
of Grant:
|
Number
of Performance Shares:
|
Three-Year
Performance
Period:
|
||
|
October
12, 2006:
|
60,000 (previously
granted)
|
Fiscal
2007, 2008 and 2009
|
||
|
October
12, 2007:
|
60,000 (previously
granted)
|
Fiscal
2008, 2009 and 2010
|
||
|
October
12, 2008:
|
60,000 (previously
granted)
|
Fiscal
2011, 2012 and 2013**
|
||
|
October
12, 2009:
|
60,000 (previously
granted)*
|
Fiscal
2011, 2012 and 2013**
|
||
|
October
12, 2010:
|
45,000
|
Fiscal
2011, 2012 and 2013
|
||
|
Total:
|
285,000*
|
|||
__________
* To be
reduced as described in Section 2 of this Exhibit B.
**
Applicable to those Performance Shares which did not vest pursuant to the
vesting criteria in effect prior to the completion of Fiscal 2010 (See Section
3(2) below).
The
reference to “Fiscal” under Performance Period, and hereafter, is to the
Company’s fiscal year ending in the referenced calendar year.
2. As noted
in Section 2 of Exhibit A, the number of Time-Based Shares and Performance
Shares the subject of the 2009 Grant will be reallocated. In this
regard, the Performance Shares granted on October 12, 2009 shall be adjusted to
equal the remainder of 60,000 minus the Time-Based Share Adjustment (as defined
in Section 2 of Exhibit A). Of this remainder, those Performance
Shares that have not vested based upon the Company’s performance through Fiscal
2010 pursuant to the vesting criteria in effect prior to this Amendment shall
vest in accordance with Section 3 of this Exhibit B. The Restricted
Share agreement evidencing the initial grant of 60,000 Performance Shares shall
be amended accordingly to reflect the lesser number of Performance Shares the
subject thereof.
3. After the
completion of Fiscal 2010, the vesting of Performance Shares shall be determined
based on the comparison of the Company’s Operating Margin (as defined below) and
Total Return (as defined below) to the Operating Margins and Total Returns of
the Peer Group Companies (as defined below), as more fully described in Section
3(2) below.
(1) The
following terms shall be used for purposes of this Section 3:
(a) “2008
Grant” shall refer to the Performance Shares granted on October 12, 2008
pursuant to Section 1 of this Exhibit B and which have not vested based upon the
Company’s performance through the completion of Fiscal 2010.
(b) “2009
Grant” shall refer to the Performance Shares granted on October 12, 2009
pursuant to Section 1 of this Exhibit B and which have not vested based upon the
Company’s performance through Fiscal 2010.
(c) “2010
Grant” shall refer to the Performance Shares granted on October 12, 2010
pursuant to Section 1 of this Exhibit B.
(d) “Cumulative
Operating Margin” shall mean the aggregate Operating Income for the three
Performance Years included in the Performance Period expressed as a percentage
of the aggregate Revenues for the same Performance Years.
(e) “Cumulative
Operating Margin Vesting Percentage” shall be obtained by reference to the
following table:
|
Cumulative
Operating Margin Peer Group Ranking
|
Vesting
Percentage
|
|
Below
50th
Percentile
|
-0-
|
|
50th
Percentile
|
25%
|
|
55th
Percentile
|
50%
|
|
60th
Percentile
|
100%
|
(f) “Cumulative
Total Return” shall be a percentage determined by (i) subtracting the
average closing price per Common share for the fourth quarter of the Fiscal year
immediately preceding the commencement of a Performance Period (the "Cumulative
Beginning Value") from the sum of (a) the average closing price per Common share
for the fourth quarter of the third Performance Year of the applicable
Performance Period, plus (b) the aggregate amount of dividends paid with respect
to a Common share during the three Performance Years of such Performance Period
(the remainder being referred to as the "Cumulative Value Change") and
(ii) dividing the Cumulative Value Change by the Cumulative Beginning
Value.
(g) “Cumulative
Total Return Vesting Percentage” shall be obtained by reference to the following
table:
|
Cumulative
Total Return Peer Group Ranking
|
Vesting
Percentage
|
|
Below
50th
Percentile
|
-0-
|
|
50th
Percentile
|
25%
|
|
55th
Percentile
|
50%
|
|
60th
Percentile
|
100%
|
(h) “Operating
Income” shall be determined in accordance with generally accepted accounting
principles and as reflected in the Company’s audited financial statements for
the respective Fiscal year, excluding, therefrom (if otherwise included in
“operating income”), however, any expense arising from the Performance Shares,
any gains or losses on the sale of Company owned restaurants to franchisees,
costs and fees associated with the purchase or sale of equity securities
(including a merger) of the Company or the borrowing of, or reduction in, debt
financing, and any costs, expenses or gains or losses directly associated with
the disposition or discontinuance of the Company’s Carl’s Jr. distribution
business. To the extent determinable, the Operating Income of each
Peer Group Company shall exclude any gains or losses on the sale of Peer Group
Company owned restaurants to franchisees and costs and fees associated with the
purchase or sale of equity securities of the Peer Group Company or the borrowing
of, or reduction in, debt financing.
(i) “Operating
Margin” shall mean Operating Income as a percentage of Revenues.
(j) “Operating
Margin Vesting Percentage” shall be obtained by reference to the following
table:
|
Operating
Margin Peer Group Ranking
|
Vesting
Percentage
|
|
Below
50th
Percentile
|
-0-
|
|
50th
Percentile
|
25%
|
|
55th
Percentile
|
50%
|
|
60th
Percentile
|
100%
|
(k) “Peer
Group Companies” shall mean the 15 companies listed on Exhibit C to this
Amendment. If the information for any particular performance criteria
for any particular Performance Year or full Performance Period is not available
for any of the Peer Group Companies, such Peer Group Company shall be excluded
from the Peer Group in determining the Company’s Peer Group Ranking for that
performance criteria.
(l) “Peer
Group Ranking” shall be the percentile in which the Company’s performance ranks
when compared with the Peer Group Companies’ performance for the applicable
performance criteria. For purposes of determining this ranking, the
Company will be added to the total number of Peer Group Companies participating
in the ranking. For example, if the Company ranked eighth when
compared to the 15 Peer Group Companies, the Company’s ranking would be in the
50th
percentile (8 of 16). For purposes of determining this ranking, the
Operating Margin, Total Return, Cumulative Operating Margin and Cumulative Total
Return Margin, as the case may be, will be calculated for each of the Peer Group
Companies.
(m) “Performance
Year” shall mean a Fiscal year within the “Performance Period.”
(n) “Total
Return” shall be a percentage determined by (i) subtracting the average closing
price per Common share for the fourth quarter of the Fiscal year preceding the
operative Performance Year (the "Beginning Value") from the sum of (a) the
average closing price per Common share for the fourth quarter of the operative
Performance Year plus (b) the aggregate amount of dividends paid with respect to
a Common share during the operative Performance Year (the remainder being
referred to as the "Value Increase") and (ii) dividing the Value Increase by the
Beginning Value. For purposes of determining Total Return for either
the Company or any Peer Group Company, all adjustments provided for in Section
4.3 of the 2005 Company Equity Plan shall be made.
(o) “Total
Return Vesting Percentage” shall be obtained by reference to the following
table:
|
Total
Return Peer Group Ranking
|
Vesting
Percentage
|
|
Below
50th
Percentile
|
-0-
|
|
50th
Percentile
|
25%
|
|
55th
Percentile
|
50%
|
|
60th
Percentile
|
100%
|
(p) “Revenues”
shall be determined in accordance with generally accepted accounting principles
and as reflected in the Company’s or Peer Group Company’s financial statements
for the applicable Performance Year.
For
purposes hereof, since the Peer Group Companies will have different fiscal
years, the fiscal years for each which most closely approximates the Company’s
Fiscal years within this Performance Period should be used.
(2) Upon the
completion of Fiscal 2010, the vesting criteria in effect prior to this
Amendment for the Company’s performance through Fiscal 2010 will cease to be in
effect. Accordingly, the Performance Shares from the 2008 Grant and
the 2009 Grant that have not vested as of or prior to such cessation and the
Performance Shares the subject of the 2010 Grant will only vest as provided in
this Section (2). This vesting may occur in any of the following
ways:
(a) One-third
(1/3) of the Performance Shares (the “Subject Shares”) from each of the 2008
Grant, the 2009 Grant and the 2010 Grant shall be eligible to vest at the end of
each Performance Year during their respective Performance Periods in either of
two ways. In this regard, at the end of each respective Performance
Year, a number of Subject Shares shall vest that is equal to the product of: (i)
such Subject Shares, multiplied by (ii) the greater of (A) the Operating Margin
Vesting Percentage, and (B) the Total Return Vesting Percentage.
(b) If not
all Performance Shares for any Performance Period vest pursuant to item (a)
above, the Performance Shares that do not so vest may, nevertheless, vest on a
three-year cumulative basis. In this regard, at the end of each
three-year Performance Period, the number of the remaining unvested Performance
Shares from such Performance Period that shall vest shall be equal to the
product of: (i) the aggregate number of such unvested Performance Shares,
multiplied by (ii) the greater of (a) the Cumulative Operating Margin Vesting
Percentage, and (b) the Cumulative Total Return Vesting
Percentage. Any such remaining unvested Performance Shares that do
not vest pursuant to this item (b) shall be forfeited and returned to the
Company.
4. Except as
otherwise provided herein, the Employee must be employed by the Company (i) on
the last day of any Performance Year in order for any Performance Shares to vest
for such Performance Year, and (ii) on the last day of the third Performance
Year in the Performance Period in order for any Performance Shares to vest under
Section 3(2)(b) above; provided, however, if the Employee dies or becomes
disabled (as provided in Section 7(c) of the Agreement) during any Performance
Year, any Performance Shares which meet the vesting criteria for such
Performance Year shall nevertheless still vest, and, if such Performance Year is
the third year of the Performance Period, any Performance Shares which meet the
cumulative vesting criteria in Section 3(2)(b) above for such Performance
Period shall vest in accordance with such Section.
5. After
each Performance Year or Performance Period, as the case may be, for which
Performance Shares may vest, the Company’s Compensation Committee shall make a
determination as to whether or not any Performance Shares have vested pursuant
to the terms of this Exhibit B and shall certify as to its
determination. This determination shall be made by the time that the
Company files its Form 10-K with the Securities and Exchange Commission for such
Fiscal year or at such time thereafter as the pertinent information is
available.
6. All
vesting of Performance Shares for any Performance Year shall be as of the last
day of the Performance Year for which the performance criteria was met, and all
vesting of Performance Shares on a cumulative basis for a Performance Period
shall be as of the last day of the third Performance Year of the Performance
Period.
7. If there
is a “Change In Control,” as defined in Section 8 of the Agreement, all
Performance Shares (including Performance Shares whose Date of Grant has not yet
occurred) which have not vested as of the date of the Change In Control (the
“Unvested Performance Shares”) shall thereafter not vest pursuant to the vesting
criteria set forth above in this Exhibit B, but rather, shall vest based on time
as follows:
(1) All
Unvested Performance Shares whose Date of Grant precedes a Change In Control
shall vest monthly, in equal amounts, on the last day of each calendar month,
commencing on the last day of the calendar month immediately following the month
in which the Change In Control occurs, and ending on the last day of their
respective three-year Performance Periods; and
(2) All
Unvested Performance Shares whose Date of Grant has not yet occurred shall vest
monthly, in equal amounts, on the last day of each calendar month, commencing
with the month immediately following the month in which the Date of Grant
occurs, and ending on the last day of the respective three-year Performance
Period.
Any
Unvested Performance Shares remaining from the determination of an equal number
of shares to vest monthly shall vest on the last day of the respective
Performance Period. The foregoing is subject to any accelerations
that may occur pursuant to this Agreement or otherwise.
Exhibit
C
Peer
Group Companies
Brinker
International, Inc.
California
Pizza Kitchen, Inc.
Cheesecake
Factory Incorporated
Denny’s
Corp.
Dominos
Pizza, Inc.
Jack
in the Box Inc.
Krispy
Kreme Doughnuts, Inc.
Landry’s
Restaurants
Outback
Steakhouse, Inc.
P.F.
Chang’s China Bistro
Panera
Bread Company
Papa
John’s International
Red
Robin Gourmet Burgers, Inc.
Ruby
Tuesday, Inc.
Sonic
Corp.