Exhibit 10.21
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated Employment
Agreement (“Agreement”), dated as of December 13,
2006, as amended and restated as of December 13, 2008, by and
among CARROLS RESTAURANT GROUP, INC., a Delaware corporation
(“Parent”) with an address at 968 James Street,
Syracuse, New York 13203, CARROLS CORPORATION
(“Employer”), a Delaware corporation and a wholly-owned
subsidiary of Parent with an address at 968 James Street, Syracuse,
New York 13203, and ALAN VITULI whose principal residence is 789
Crandon Boulevard, Key Biscayne, Florida 33149
(“Employee”):
W I T N E S S E T H:
WHEREAS, Employee has been and is
presently employed by Employer as its Chairman of the Board and
Chief Executive Officer pursuant to the terms of the Second Amended
and Restated Employment Agreement, dated as of March 27, 1997,
between Employer and Employee, as amended and extended pursuant to
an Extension of Employment Agreement, dated April 1, 2002, as
further extended pursuant to a Second Extension of Employment
Agreement, dated November 11, 2004 and as further extended
pursuant to a third Extension of Employment Agreement, dated as of
May 3, 2005 (together, the “Prior Employment
Agreement”);
WHEREAS, the parties have agreed
that Parent, Employer and Employee shall enter into this Agreement
which, effective as of the Effective Date (as defined herein),
shall supersede in its entirety the Prior Employment
Agreement;
WHEREAS, the parties wish to amend
and restate this Agreement to comply with the requirements of
Section 409A of the Internal Revenue Code (the
“Code”) and the regulations issued thereunder;
and
WHEREAS, as of the Effective Date,
Parent and Employer desire to continue to engage Employee to
perform services for Employer, Parent, and any present or future
parent, subsidiary or affiliate of Employer or Parent, and their
successors and assigns (the “Companies”) and Employee
desires to perform such services, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of
the mutual covenants and agreements herein set forth and other good
and valuable consideration, the receipt and adequacy of which is
mutually acknowledged, it is agreed by and between the parties as
follows:
1. DEFINITIONS
For purposes of this Agreement,
unless the context requires otherwise, the following words and
phrases shall have the meanings indicated below:
“Change of Control”
shall mean and shall have occurred or be deemed to have occurred
only if any of the following events occurs:
(a) The acquisition, directly or
indirectly, by any person or group (as those terms are defined in
Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act
and the rules thereunder) of beneficial ownership (as determined
pursuant to Rule 13d-3 under the Exchange Act) of securities
entitled to vote generally in the election of directors (voting
securities) of Parent that represent 50% or more of the combined
voting power of Parent’s then outstanding voting securities,
other than:
(i) An acquisition by a trustee or
other fiduciary holding securities under any employee benefit plan
(or related trust) sponsored or maintained by Parent or any person
controlled by Parent or by any employee benefit plan (or related
trust) sponsored or maintained by Parent or any person controlled
by Parent; or
(ii) An acquisition of voting
securities by Parent or a corporation owned, directly or indirectly
by all of the stockholders of Parent in substantially the same
proportions as their ownership of the stock of Parent.
Notwithstanding the foregoing, the following
event shall not constitute an acquisition by any person or group
for purposes of this subsection (a): an acquisition of
Parent’s securities by Parent which causes Parent’s
voting securities beneficially owned by a person or group to
represent 50% or more of the combined voting power of
Parent’s then outstanding voting securities; provided
, however , that if a person or group shall become the
beneficial owner of 50% or more of the combined voting power of
Parent’s then outstanding voting securities by reason of
share acquisitions by Parent as described above and shall, after
such share acquisitions by Parent, become the beneficial owner of
any additional voting securities of Parent, then such acquisition
shall constitute a Change of Control; or
(b) individuals who, as of the
Effective Date, constitute the Board of Directors of Parent (as of
the Effective Date, the “Incumbent Board”) cease for
any reason to constitute at least a majority of the Board of
Directors of Parent, provided that any person becoming a director
subsequent to the Effective Date whose election, or nomination for
election by Parent’s stockholders, was approved by a vote of
at least a two-thirds of the directors then comprising the
Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election
of the directors of Parent) shall be, for purposes of this
Agreement, considered as though such person were a member of the
Incumbent Board; or
(c) The consummation by Parent
(whether directly involving Parent or indirectly involving Parent
through one or more intermediaries) of (i) a merger,
consolidation, reorganization, or business combination, or
(ii) the acquisition of assets or stock of another entity, in
each case other than a transaction:
(A) Which results in Parent’s
voting securities outstanding immediately before the transaction
continuing to represent (either by remaining outstanding or by
being converted into voting securities of Parent or the person
that, as a result of the transaction, controls, directly or
indirectly, Parent or owns, directly or indirectly, all or
substantially all of Parent’s assets or otherwise succeeds to
the business of Parent (Parent or such person, the “Successor
Entity”)) directly or indirectly, at least a majority of the
combined voting power of the Successor Entity’s outstanding
voting securities immediately after the transaction; and
(B) After which no person or group
beneficially owns voting securities representing 50% or more of the
combined voting power of the Successor Entity; provided,
however , that no person or group shall be treated for purposes
of this clause (B) as beneficially owning 50% or more of
combined voting power of the Successor Entity solely as a result of
the voting power held in Parent prior to the consummation of the
transaction; or
(d) a sale or disposition of all or
substantially all of Parent’s assets; or
(e) The Parent’s stockholders
approve a liquidation or dissolution of the Parent.
“Cause” shall mean:
(i) the commission by Employee of a felony; (ii) the
unauthorized disclosure of confidential proprietary information of
Parent, Employer or any of the Companies which disclosure Employee
knows or reasonably should have known would be reasonably likely to
result in material damage to Parent or Employer; (iii) the
breach by Employee of any material provision of this Agreement,
which breach, if curable, is not remedied within thirty
(30) days after Employee’s receipt of written notice
thereof provided, however, that Employer need not permit Employee
to cure any breach which has been the subject of a prior written
notice; (iv) the engagement in material self dealing in breach
of fiduciary duties with respect to Parent’s or
Employer’s assets or properties unless disclosed to and
approved by the disinterested members of the Board of Directors of
Parent; (v) an act of gross misconduct in connection with
Employee’s duties hereunder; or (vi) chronic alcohol or
drug abuse rendering Employee incapable of carrying out his duties
hereunder as determined in good faith by the Board of Directors of
Parent continuing after Employee is given a reasonable opportunity
to obtain medical or other appropriate treatment or
rehabilitation.
“Effective Date” shall
mean December 14, 2006, which was the date that the
Registration Statement was declared effective by the Securities and
Exchange Commission.
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“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended.
“Good Reason” shall mean
(i) the material failure of Employer to comply with the
provisions of this Agreement which failure shall not cease promptly
and in no event more than thirty (30) days after
Employer’s receipt of written notice from Employee objecting
to such conduct; (ii) any termination by Parent or Employer of
Employee’s employment other than as expressly permitted in
this Agreement; or (iii) the assignment to Employee of duties
and responsibilities materially inconsistent with those duties and
responsibilities customarily assigned to individuals holding the
position of Chairman and Chief Executive Officer of a company of
comparable size or the substantial reduction by Parent or Employer
of Employee’s duties and responsibilities and, if curable,
not remedied by Employer within 30 days after receipt of written
notice.
“Registration Statement”
shall mean Parent’s Registration Statement on Form S-1
(Registration No. 333-137524), filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended,
with respect to the initial public offering of Parent’s
common stock.
2. REPRESENTATIONS AND
WARRANTIES
Employee represents and warrants
that he is not subject to any restrictive covenants or other
agreements or legal restrictions in favor of any person which would
in any way preclude, inhibit, impair, limit or be violated by his
employment hereunder or the performance of his duties, as
contemplated herein.
3. EMPLOYMENT
Employer hereby employs Employee and
Employee accepts such employment as Chairman and Chief Executive
Officer of Employer. Employee shall also serve as Chairman and
Chief Executive Officer of Parent. As its Chairman and Chief
Executive Officer, Employee shall render such services to Parent
and Employer as are customarily rendered by the Chairman and Chief
Executive Officer of comparable companies and as required by the
certificate of incorporation and by-laws of Parent. During the
Term, Employee shall be elected to and shall serve, if so elected,
as a member of the Board of Directors of Parent and Employer and
may be elected and shall serve, if so elected, as a member of the
Board of Directors of the other Companies as may from time to time
be prescribed by the Board of Directors of Parent or Employer.
Employee accepts such employment and, consistent with fiduciary
standards which exist between an employer and an employee shall
perform and discharge the duties that may be assigned to him from
time to time by Parent or Employer in an efficient, trustworthy and
businesslike manner. It is specifically agreed that nothing in this
Agreement shall prohibit Employee from (i) serving on
corporate, civic or charitable boards or committees;
(ii) engaging directly or indirectly, in activities with other
public or private companies or ventures; or (iii) making
investments in any capacity whatsoever, provided only that, such
activities or any of them do not impair Employee’s
performance of his duties or otherwise violate or result in a
breach of the terms and provisions of Section 11
hereof.
4. PLACE OF EMPLOYMENT
During the Term, Employee shall
render services where and as reasonably required by Parent or
Employer. In conformance with the foregoing and not in limitation
thereof, Employee agrees to take such trips as shall be consistent
with or reasonably necessary in connection with his duties.
Employer shall furnish Employee at Employer’s principal
office with an office and secretarial help and such other
assistance, facilities and services consistent with
Employee’s position and necessary for the adequate
performance of his duties.
5. TERM
Subject to the provisions of
Section 10 hereof, the term of this Agreement shall commence
on the Effective Date and shall expire on December 31, 2008
(the “Initial Term”). This Agreement shall be
automatically renewed for successive twelve (12) month periods
on all the remaining terms and conditions set forth herein, unless
either party elects not to renew this Agreement by giving written
notice to the other at least ninety (90) days before a
scheduled expiration date. The Initial Term of this Agreement
together with any such renewals are collectively referred to herein
as the “Term.”
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6. COMPENSATION
(a) As compensation for all services
rendered and to be rendered by Employee hereunder and the
fulfillment by Employee of all of his obligations herein, Employer
shall pay Employee, during the term, a base salary (the “Base
Salary”) at the rate of $650,000 per annum (prorated for
periods that are less than one year) payable in accordance with
Employer’s customary payroll practices. Employee’s base
salary shall be subject to an annual increase at the sole
discretion of the Compensation Committee of the Board of Directors
of Parent.
(b) Employee will participate in the
Executive Bonus Plan of Employer (the “Executive Bonus
Plan”). Notwithstanding any provision contained herein or in
the Executive Bonus Plan to the contrary, no amendment to the
Executive Bonus Plan shall have a material adverse impact on
Employee. If the Executive Bonus Plan is discontinued, Employer
agrees to establish a plan which will provide similar potential
benefits based upon similar performance measurements to
Employee.
(c) Employee will also be eligible
to participate in all phantom and/or actual stock option or other
equity incentive programs applicable to executive employees as
determined by the Compensation Committee of the Board of Directors
of Parent in its sole discretion.
(d) Employer shall deduct from the
compensation described in (a), (b) and (c) above, any
federal, state or city withholding taxes, social security
contributions and any other amounts which may be required to be
deducted or withheld by Employer pursuant to any federal, state or
city laws, rules or regulations.
(e) Any compensation otherwise
payable to Employee pursuant to this Section in respect of any
period during which Employee is disabled (as contemplated in
Section 10) shall be reduced by any amounts payable to
Employee for loss of earnings or the like under any insurance plan
or policy the premiums for which are paid for in their entirety by
Employer.
7. BUSINESS EXPENSES
(a) Employer shall
pay, on behalf of Employee, or reimburse Employee, for all dues to
professional societies and other organizations as are customarily
joined by individuals holding the position of Chairman and Chief
Executive Officer of businesses similar to Parent and Employer.
Such dues shall be paid or reimbursed no later than
March 15 th of the calendar year immediately
following the calendar year in which such dues are payable.
Employer will require and shall reimburse Employee for his out of
pocket cost of one complete physical examination per fiscal year of
the Term; provided that such out of pocket costs shall be
reimbursed no later than March 15 th of the calendar year
immediately following the calendar year in which such cost is
incurred.
(b) Each of Parent
and Employer agrees that Employee is authorized to incur reasonable
expenses in the performance of his duties hereunder and agrees that
all reasonable expenses incurred by Employee in the discharge and
fulfillment of his duties, as set forth in Section 3, will be
promptly reimbursed or paid by Employer upon written substantiation
signed by Employee, itemizing said expenses and containing all
applicable vouchers. Employee shall be entitled to receive prompt
reimbursement for all reasonable travel and entertainment expenses
and the costs of attending conferences and seminars, so long as
such expenses relate to Employee’s ability to serv
