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EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EFFECTIVE AS OF SEPTEMBER 1, 2005 BETWEEN
AFC ENTERPRISES, INC. (THE "COMPANY") AND
KENNETH L. KEYMER ("EMPLOYEE")
WHEREAS, the Company desires to employ Employee and enter into
an
agreement embodying the terms of such
employment; and
WHEREAS, Employee desires to accept such employment and to enter
into
such agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants
contained herein and for other good and
valuable consideration, the parties
agree as follows:
1. Term of
Agreement.
This Agreement shall be effective as of the
date hereof and, unless earlier
terminated pursuant to Section 8 or Section
9 hereof, shall be for an initial
term of two (2) years and four (4) months,
which initial term shall start on
September 1, 2005 and shall end on December
30, 2007 (the "Initial Term").
Unless written notice of either party's
desire to terminate this Agreement has
been given to the other party at least
thirty (30) days prior to the expiration
of the Initial Term (or any one-year
renewal thereof contemplated by this
sentence), the term of this Agreement shall
be automatically renewed for
successive one-year periods coinciding with
the Company's fiscal year (as such
Initial Term may be extended, the
"Term").
2.
Employment.
2.01 Position. Employee shall serve as President and Chief
Executive Officer of the Company, and shall
perform such duties consistent with
his position as may be assigned to him from
time to time by the Board of
Directors of the Company.
2.02 Time and Efforts. Employee, so long as he is employed
hereunder, shall devote his full business
time and attention to the services
required of him hereunder, except as
otherwise agreed and for vacation time and
reasonable periods of absence due to
sickness or personal injury, and shall use
his best efforts, judgment and energy to
perform, improve and advance the
business and interests of the Company in a
manner consistent with the duties of
his position.
3. Base
Salary.
Beginning on January 27, 2003 and continuing during the term
hereof, The Company shall pay Employee, in
equal installments no less frequently
than monthly, a base salary at the rate of
no less than Five Hundred Thousand
and no/100 Dollars ($500,000.00 U.S.) per
annum (the "Base Salary") during the
Term. The Employee's Base Salary shall be
reviewed
Employee's Initials:
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by the People Services (Compensation)
Committee of AFC's Board of Directors on
an annual basis.
4. Incentive
Pay.
4.01
Annual Plan. The Board of Directors of the Company, acting in
its sole discretion, shall annually, at the
beginning of each fiscal year of the
Company, approve an annual incentive plan
(the "Annual Incentive Plan") for
Employee, which Plan shall contain such
terms and provisions as the Board of
Directors shall determine. Any amounts
payable to Employee pursuant to the
Annual Incentive Plan is hereinafter
referred to as "Incentive Pay".
4.02
Target Incentive Pay. The target Incentive Pay ("Target
Incentive Pay") for Employee for the fiscal
year of the Company ending in 2005
shall be as follows: Five Hundred Thousand
and No/100 Dollars (U.S.
$500,000.00); provided, however, that such
increase in Target Incentive Pay for
the fiscal year of the Company ending in
2005 shall be pro-rated for the period
beginning on September 1, 2005 and ending
on December 30, 2005; provided,
further, that the Target Incentive Pay with
respect to any fiscal year is
subject to, and may be modified by, the
Annual Incentive Plan approved by the
Board of Directors pursuant to Section 4.01
above and this Section 4.02 shall be
read accordingly.
4.03
Payment of Incentive Pay. If Employee is entitled to payment of
any Incentive Pay for any fiscal year, an
accounting will be furnished and
payment will be made to Employee as set
forth in the Annual Incentive Plan, but
in no event later than two and one-half
months following the end of each fiscal
year.
4.04
Termination of Employment. If Employee's employment hereunder
shall terminate other than pursuant to
Sections 8.03 or 8.04, the Employee shall
receive, at the time contemplated by the
Annual Incentive Plan, such Incentive
Pay, if any, to which he would have been
entitled under the terms of the Annual
Incentive Plan had Employee remained in the
employ of the Company for the entire
fiscal year in which such termination
occurs. If Employee's employment hereunder
shall terminate pursuant to (a) Section
8.03, the provisions of Section 8.03
shall determine the amount of Incentive Pay
payable to Employee; or (b) Section
8.04, no Incentive Pay shall be payable to
Employee after such termination.
5.
Stock and Stock Options. The Company has heretofore made
certain
restricted stock grants to Employee. The
company and Employee agree that such
existing restricted stock grants shall be
revised effective as of September 1,
2005 to change the vesting of unvested
stock to be equal vesting over three
years to be consistent with vesting dates
of restricted stock grants given to
Popeyes senior management. During the Term,
Executive shall be eligible for
grants of options to purchase stock of the
Company when and as recommended by
the People Services (Compensation)
Committee of the Company's Board of
Directors. The number of shares subject to
each such stock option grant shall be
reasonable in light of the contribution
made, or expected to be made, by
Executive for the period for which such
grant is made in relation to the number
of shares subject to the stock option
grants made to other senior Company
executives based on the contributions made,
or expected to be made, by such to
other senior Company executives for such
period. Executive shall be granted an
option to purchase 50,000 shares of stock
on September 1, 2005 at the fair
market value on
Employee's Initials:
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September 1, 2005 (the "Initial Option
Grant"). One fourth of the options
subject to the Initial Option Grant shall
vest on each of the first four (4)
anniversaries of the date of grant.
6.
Employee Benefits.
6.01
Executive Flex Perk. Employee shall be entitled to participate
in the Company's Executive Flex Perk Plan
subject to the terms, conditions and
limitations thereof. Subject to Section
6.07 below and the terms of the Plan,
the Company will pay to, or for the benefit
of Employee, an amount equal to
$15,000.00 per year payable in the same
manner as Employee's Base Salary is
paid.
6.02
Life
Insurance. During the Term, Executive shall be entitled to
life insurance coverage in an amount not
less than $2,500,000.
6.03
Disability Insurance.
(a)
During the Term, Executive shall be entitled to
disability insurance coverage in an amount
not less than his disability
insurance coverage on the date of this
Agreement and shall maintain in full
force and effect during the Term a
Supplemental Disability Policy which will
supplement the benefits payable under any
disability benefit provided to
Employee by the Company under its basic
employee health care benefit program, so
that, subject to Section 6.07 below, with
respect to a disability as defined in
the Supplemental Disability Policy
occurring after the Company has obtained the
Supplemental Disability Policy, the total
monthly disability benefit (the
"Disability Benefit") payable to Employee
under all disability policies
maintained by the Company, after a maximum
elimination period of ninety (90)
days, shall equal 70% of the sum of
Employee's Base Compensation and Incentive
Pay for the year immediately preceding the
year in which the termination for
Disability occurs.
(b)
Notwithstanding anything herein to the contrary, if the
premiums for the Supplemental Disability
Income Policy for Employee shall exceed
regular, non-rated premiums, the Company
may, but shall have no obligation to,
fund such excess. In the event the Company
determines not to fund such excess it
shall promptly notify Employee and Employee
may, at his option, elect to pay the
excess. If Employee fails to pay such
excess or if for any other reason the
Company, after reasonable efforts, is not
able to obtain the Supplemental
Disability Income Policy required herein,
then Employee shall not be entitled to
any Disability Benefit hereunder except as
may otherwise be determined in the
discretion of the Company and set forth in
writing.
6.04
Executive Medical Benefit. Subject to Section 6.07, the
Company,
at its expense, shall provide Employee with
an annual physical examination to be
conducted by a physician or physicians as
determined by the Company, or by
Employee with the approval of the
Company.
6.05 Other
Benefits. Employee shall be provided additional employee
benefits, including health, accident and
disability insurance under the
Company's regular and ongoing plans,
policies and programs available, from time
to time, to senior officers of the Company,
in accordance with the provisions of
such plans, policies and programs governing
eligibility and
Employee's Initials:
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participation; provided, however, that such
benefits may be modified, amended or
rescinded by the Board of Directors of the
Company in its sole discretion
subject to applicable law and the terms of
such plans.
6.06
Vacation. Employee shall be entitled to four (4) weeks paid
vacation each year during the term hereof.
Any vacation not used in any year
shall not accrue for use in subsequent
years and shall be forfeited as of the
end of such year.
6.07
Paramount Provisions.
(a)
Notwithstanding anything in Sections 6.02 and 6.03 above
or any other provision of this Agreement to
the contrary, if the Company has met
all of its obligations under this Agreement
(and the Insurance Agreement, if
applicable) with respect to obtaining and
maintaining in force (i) the Life
Insurance Policy described in Section 6.02
hereof on the life of Employee to
fund the Death Benefit or (ii) the
Supplemental Disability Policy maintained for
Employee pursuant to Section 6.03 hereof to
fund such Employee's Disability
Benefit, but all or any portion of the
proceeds under any such policy are not
actually received by Employee for any
reason whatsoever, including without
limitation the insolvency of the insurer or
any misrepresentation made by
Employee in the application for such
insurance, then the right of Employee or
his designated beneficiary to receive a
Disability Benefit or a Death Benefit,
as the case may be, shall be reduced (but
not below zero) by the amount by which
the Disability Benefit or Death Benefit
otherwise payable exceeds the insurance
proceeds actually received.
(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 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. The good faith
interpretation and construction by the
People Services (Compensation) Committee
or 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.
7. Business
Expenses.
All reasonable and customary business expenses incurred by Employee
in
the performance of his duties hereunder
shall be paid or reimbursed by the
Company in accordance with the Company's
policies in effect, from time to time.
8.
Termination of Employment.
8.01
Definitions. For
purposes of this Section 8, the following
terms shall have the following
meanings:
Employee's Initials:
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(a) Cause. The term "Cause" shall mean (i) Employee commits
fraud or is convicted of a crime involving
moral turpitude, (ii) Employee, in
carrying out his duties hereunder, has been
guilty of gross neglect or gross
misconduct resulting in harm to the Company
or any of its subsidiaries or
affiliates, (iii) Employee shall have
failed to materially comply with the
policies of the Company or shall have
refused to follow or comply with the duly
promulgated directives of the Board of
Directors of the Company, (iv) Employee
has breached any of the provisions of
Section 10.02 through and including 10.04
or (v) Employee otherwise materially
breaches this Agreement.
(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.
8.02
Termination upon Death or Disability. If Employee's employment
is terminated due to his death or
Disability, the Company shall pay to the
estate of the Employee or to the Employee,
as the case may be, within fifteen
(15) days following Employee's death or
upon his termination in the event of
Disability, all amounts then payable to
Employee pro rated through the date of
termination pursuant to Sections 3, 6.01,
and 7, and the amount of any accrued
but unused vacation under Section 6.06 for
the year in which such termination
occurs. In addition, the Company shall pay
to Employee any Incentive Pay payable
pursuant to Section 4.04 hereof in
accordance with the terms thereof.
8.03
Termination by the Company for other than Death or Disability
or
for Cause. The Company may terminate
Employee's employment hereunder 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, 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 one (1) times Employee's Base Salary at
the time of termination; (b) a
payment equal to one (1) 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) a payment equal to a
prorated portion of Employee's Target
Incentive Pay for the year in which such
termination occurs based upon his Target
Incentive Pay according to the metrics
established by the People Services
(Compensation) Committee of the Board (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) based on the proportion that
the number of days from January 1 in
the year of such termination through and
including the date of termination bears
to the total number of days in the year of
termination less any amount of
Employee's Target Incentive Pay for such
fiscal year that that has been
previously paid to Employee; (d)
reimbursement of COBRA premiums paid by
Executive for coverage for himself or his
dependents for up to eighteen (18)
months of COBRA coverage to the extent not
otherwise provided by any successor
employer, and (e) 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. As a condition precedent to the
Employee's Initials:
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requirement of Company to make such
payments or grant such accelerated vesting,
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.
Payments required to be made under this Section 8.03 shall be made
to
Employee within thirty (30) days after the
date of Employee's termination of
employment; provided that the payment
described in clause (c) of this Section
8.03 shall be payable at the time of
payment of other Incentive Pay for senior
executives.
8.04
Voluntary Termination by Employee or Termination for Cause.
Employee may terminate his employment
hereunder at any time whatsoever, with or
without cause, upon thirty (30) days prior
written notice to the Company. The
Company may terminate Employee's employment
hereunder at any time without notice
for Cause. In the event Employee's
employment is terminated voluntarily by
Employee or by the Company
