CKE RESTAURANTS,
INC.
AMENDMENT NO. 3
TO
EMPLOYMENT
AGREEMENT
This Amendment No. 3 (the
“Amendment”) to Employment Agreement is made effective
as of December 16, 2008, 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 12, 2004, and amended on December 6, 2005 and
October 12, 2006 (collectively, the
“Agreement”).
B. The
Company and the Employee now desire to further amend the Agreement
as set forth below.
AGREEMENT
1. Term
. Section 2 is hereby amended to read in its entirety as
follows:
“2.
Term . The term of this Agreement shall commence
on the Effective Date and, prior to July 11, 2012, shall terminate
three (3) years following the date on which notice of non-renewal
or termination of this Agreement is given by either party to the
other and, on and subsequent to July 11, 2012, shall terminate on
July 11, 2015, subject in all cases to prior termination as set
forth in Section 7 below (the “ Term
”). Thus, prior to July 11, 2012, the Term shall
be renewed automatically on a daily basis so that the outstanding
Term is always three (3) years following the date on which notice
of non-renewal or termination is given by either party to the other
and, on July 11, 2012, the Term shall convert into a remaining
three (3) year term ending on July 11, 2015. The Term
may be extended at any time upon mutual written agreement of the
parties.”
2. Other
Compensation and Fringe Benefits . The definition of
“Actual Income” as set forth in Section 4(e) is hereby
amended to add the following phrase at the end thereof:
“provided, further, that any accounting
credits or charges associated with any interest rate swap
derivatives shall be excluded from Actual Income;”
3. Other
Compensation and Fringe Benefits . Clause (g) is
hereby added to Section 4, which clause reads in its entirety as
follows:
“(g)
Section 409A Limitation . Any amounts payable
under Sections 4(b), 4(c) or 6 shall be paid no later than December
31 of the year following the year in which the expenses
are incurred.”
4. Termination
. Section 7(b)(ii) is hereby amended to add the
following text immediately following the phrase which reads
“...subject to the Employee executing and delivering to the
Company a release of the Company and its affiliates from all known
and unknown claims at the date of such termination based upon or
arising out of this Agreement or the termination, in form
reasonably acceptable to the Employee”:
“(provided that such release shall be
executed and delivered on or prior to the fifty-fifth (55
th ) day following the date of the Employee’s
termination and shall be in the form of an effective release
agreement for which any applicable revocation period has
expired)”
5. Termination
. Section 7(b)(ii)(B) is hereby amended to add the
following phrase at the end thereof:
“if, at
the time the Company terminates Employee’s employment under
this Section 7(b), the Company is not a reporting company under the
Exchange Act (as defined below), or the Employee is not a
“specified employee” for purposes of Section
409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended
(the “Code”); however, if at the time the Company
terminates Employee’s employment under this Section 7(b), the
Company is a reporting company under the Exchange Act and the
Employee is a “specified employee” for purposes of
Section 409A(a)(2)(B)(i) of the Code, then Employee shall be
entitled to such sum in a single lump sum on the first business day
that occurs at the end of the period commencing on the date of
termination and ending six months after the last day of the
calendar month in which the date of termination occurs (e.g., if
the Company terminates Employee’s employment on March 15,
2009, the Company will pay the amount specified herein on the first
business day immediately following September 30,
2009).”
6. Termination
. Section 7(b)(v) is hereby amended as
follows:
(1) To add the
following text immediately following the phrase which reads
“...if the Company is a reporting company under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)”:
“and the
Employee is a “specified employee” for purposes of
Section 409A(2)(B)(i) of the Code”;
(2) To change and
replace the timing for the grant of Restricted Shares as provided
therein from “the date of such termination”
to:
“the
first business day that occurs at the end of the period commencing
on the date of termination and ending six months after the last day
of the calendar month in which the date of termination
occurs”; and
(3) To change and
replace the provision regarding vesting in the final phrase therein
from “concurrently with such termination” to “on
such date of grant.”
7. Termination
. Section 7(b)(vi) is hereby amended to add the
following text immedi
