AMENDMENT TO EMPLOYMENT AGREEMENT Between Denny’s Corporation and Nelson J. Marchioli
Exhibit 10.10
AMENDMENT
TO EMPLOYMENT AGREEMENT
Between
▇▇▇▇▇’▇ Corporation and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
This
amendment to the Agreement, as defined below, (the “Amendment”) is being entered
into on the 12th day of December, 2008, between ▇▇▇▇▇’▇ Corporation, a Delaware
corporation (the “Company”), together with its wholly-owned subsidiary, Denny’s
Inc., a California corporation (“Denny’s”) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (the
“Executive”).
WITNESSETH:
WHEREAS,
the Board of Directors (the “Board”) of the Company and the Executive entered
into an employment agreement (the “Agreement”) on May 11, 2005, which was
amended on November 10, 2006; and
WHEREAS,
the Board and the Executive wish to amend the Agreement to reflect the new terms
set forth herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties do hereby agree as
follows:
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1.
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The
following sentence shall be added to the end of Section
4(a):
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“With
respect to Executive’s rights under this Section 4(a), (i) the reimbursements
provided in any one calendar year shall not affect the amount of reimbursements
provided in any other calendar year; (ii) the reimbursement of an eligible
expense shall be made no later than December 31 of the year following the year
in which the expense was incurred; and (iii) such rights shall not be subject to
liquidation or exchange for another benefit.”
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2.
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Section
5(a)(i) shall be modified to read as
follows:
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“(i) Noon
on May 20, 2009, unless mutually extended in writing by the
parties;”
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3.
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The
following provision shall be added to the end of Section 5(b)(i)(A),
5(b)(ii)(A) and 5(b)(iii)(A):
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“provided, however, that (x)
the benefits provided in any one calendar year shall not affect the amount of
benefits provided in any other calendar year (other than the effect of any
overall coverage benefits under the applicable plans); (y) the reimbursement of
an eligible taxable expense shall be made on or before December 31 of the year
following the year in which the expense was incurred; and (z) Executive’s rights
pursuant to this subsection shall not be subject to liquidation or exchange for
another benefit;”
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4.
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Section
5(c)(i) shall be modified to read as
follows:
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“(i) "Permanent Disability" shall
mean (A) the Executive is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a continuous
period of not less than 12 months, or (B) the Executive is receiving income
replacement benefits for a period of not less than three months under an
accident and health plan covering employees of Denny’s because the Executive has
a medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months. The Executive agrees to submit such medical evidence regarding
such disability or infirmity as is reasonably requested by the Company,
including, but not limited to, an examination by a physician selected by the
Company in its sole discretion.”
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5.
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The
first sentence of Section 5(c)(v)(B) shall be modified to read as
follows:
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“(B) For
purposes of this Agreement, the Executive shall not be deemed to have incurred a
"Voluntary Termination" if upon 10 days' prior written notice from the
Executive, the Executive notifies the Company that his termination of employment
with the Company is a result of (x) a breach by the Company of a material
provision of this Agreement or (y) a change by the Company of the Executive's
title, duties or responsibilities as Chief Executive Officer and President of
the Company without his consent which results in a material diminution of his
authority, duties or responsibilities (which notice must be given no later than
90 days after the occurrence of such event), and such breach or change is not
corrected by the Company within 30 days after the Executive notifies the Board
in writing of the action or omission which the Executive believes constitutes
such a breach or change.”
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6.
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Section
5(d) shall be modified to read as
follows:
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(d) Compliance with Code Section
409A.
(i) This
Agreement shall be interpreted and administered in a manner so that any amount
or benefit payable hereunder shall be paid or provided in a manner that is
either exempt from or compliant with the requirements of Code Section 409A and
applicable advice and regulations issued thereunder.
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(ii) Notwithstanding
anything in this Agreement to the contrary, to the extent that any amount or
benefit that would constitute non-exempt “deferred compensation” for purposes of
Section 409A of the Code would otherwise be payable or distributable
hereunder by reason of Executive’s termination of employment, such amount or
benefit will not be payable or distributable to Executive by reason of such
circumstance unless (i) the circumstances giving rise to such termination
of employment meet any description or definition of “separation from service” in
Section 409A of the Code and applicable regulations (without giving effect
to any elective provisions that may be available under such definition), or
(ii) the payment or distribution of such amount or benefit would be exempt
from the application of Section 409A of the Code by reason of the
short-term deferral exemption or otherwise. This provision does not
prohibit the vesting of
any amount upon a termination of employment, however defined. If this
provision prevents the payment or distribution of any amount or benefit, such
payment or distribution shall be made on the date, if any, on which an event
occurs that constitutes a Section 409A-compliant “separation from service” or
such later date as may be required by subsection (iii) below.
(iii) Notwithstanding
anything in this Agreement to the contrary, if any amount or benefit that would
constitute non-exempt “deferred compensation” for purposes of Section 409A of
the Code would otherwise be payable or distributable under this Agreement by
reason of Executive’s separation from service during a period in which he is a
Specified Employee (as defined in Code Section 409A and the final regulations
issued thereunder), then, subject to any permissible acceleration of payment by
the Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations
order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of
employment taxes):
(A) if
the payment or distribution is payable in a lump sum, Executive’s right to
receive payment or distribution of such non-exempt deferred compensation will be
delayed until the earlier of Executive’s death or the first day of the seventh
month following Executive’s separation from service; and
(B) if
the payment or distribution is payable over time, the amount of such non-exempt
deferred compensation that would otherwise be payable during the six-month
period immediately following Executive’s separation from service will be
accumulated and Executive’s right to receive payment or distribution of such
accumulated amount will be delayed until the earlier of Executive’s death or the
first day of the seventh month following Executive’s separation from service,
whereupon the accumulated amount will be paid or distributed to Executive on
such date and the normal payment or distribution schedule for any remaining
payments or distributions will resume.”
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7.
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The
following sentence shall be added to the end of Section
12:
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“The
amount of fees and expenses advanced or reimbursed by the Company under this
Section 12 in any one calendar year shall not affect the amount advanced or
reimbursable in any other calendar year, and the advancement or reimbursement of
an eligible expense shall be made within 30 days after delivery of Executive’s
respective written requests for payment accompanied with such evidence of fees
and expenses incurred as the Company reasonably may require, but in any event no
later than December 31 of the year after the year in which the expense was
incurred. Executive’s rights pursuant to this Section 12 shall expire
at the end of ten years after the date of Executive’s termination of employment
and shall not be subject to liquidation or exchange for another
benefit.”
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8.
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All
provisions of the Agreement not hereby amended, are hereby ratified and
confirmed and shall continue in full force and
effect.
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IN WITNESS WHEREOF, the
parties hereto have executed this Amendment the day and year first above
written.
| ▇▇▇▇▇'▇ Corporation | Denny's, Inc. |
| By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ | By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇ |
| Name: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ | Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇ |
| Title: Chairman of the Compensation | Title: Vice President, Human Resources |
| and Incentives Committee of the | |
| Board of Directors |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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