EX-10.(39) FOURTH AMENDMENT EMPLOYMENT AGREEMENT



 





Exhibit 10(39)




FOURTH AMENDMENT OF EMPLOYMENT AGREEMENT




     THIS FOURTH AMENDMENT, made and entered into as of the 15th day of December, 2006,
by and between RARE HOSPITALITY MANAGEMENT, INC., a Delaware corporation (hereinafter referred to
as the “Company”), and THOMAS W. GATHERS, a resident of the State of Georgia (hereinafter referred
to as the “Executive”);



WITNESSETH:




     WHEREAS, the Company and Executive entered into that certain Employment Agreement, dated as of
April 28, 2003 (the “Original Agreement”), First Amendment of Employment Agreement, dated as of
October 27, 2004 (the “First Amendment”), Second Amendment of Employment Agreement, dated as of
October 27, 2005 (the “Second Amendment”) and Third Amendment of Employment Agreement, dated as of
October 27, 2006 (the “Third Amendment”); and



     WHEREAS, the Third Amendment requires the Company and Executive to renew the Original
Agreement on or before January 1, 2007 in order for the term of the Original Agreement to continue
past the Expiration Date (as defined in the Third Amendment); and



     WHEREAS, the Company and Executive intend to renew the Original Agreement on the terms and
conditions set forth in this Fourth Amendment;



     NOW, THEREFORE, for and in consideration of the sum of One Dollar ($1.00) in hand paid by the
Company to Executive, the receipt and sufficiency of which is hereby acknowledged, and the mutual
covenants and obligations contained herein, the Company and Executive hereby agree as follows:



     1. Section 1.1 of the Original Agreement, as revised by the Third Amendment, shall be deleted
in its entirety and replaced with the following new Section 1.1:




     1.1. Employment Term. The employment term of this Agreement shall commence on
the date hereof (the “Commencement Date”) and shall continue until and end on July 1, 2008
(the “Expiration Date”), unless terminated prior thereto in accordance with Section 3
hereof. Unless renewed by mutual agreement of the Company and Executive, as expressed in
writing signed by both parties on or before January 1, 2008 (the “Notice Date”), this
Agreement shall terminate on the Expiration Date with no renewal or extension; provided,
however, that in the event the Company chooses not to renew the Agreement, the Executive
will be entitled to receive the compensation under Section 2.1 owed to Executive but unpaid
for performance rendered under this Agreement as of the Expiration Date, and the Company
will be obligated to pay Executive an amount equal to six (6) months of his Base
Compensation (as defined below), in effect immediately prior to the Expiration Date (the
“Non-Renewal Severance”). Such payments of Non-Renewal Severance shall be made as and when
salary would otherwise be payable to senior



 









 







officers of the Company; provided, however, that on February 15, 2009, the Company
shall pay Executive in one lump sum any remaining unpaid portion of the Non-Renewal
Severance, plus an amount, if any, equal to Executive’s Base Compensation for the period of
time between the Notice Date and the date on which the Company provides Executive with
written notice of non-renewal. The period from the Commencement Date until the employment
term expires or is terminated by the Company or Executive is hereinafter referred to as the
“Employment Term.”



     2. Section 2.1 of the Original Agreement, as revised by the Third Amendment, shall be deleted
in its entirety and replaced with the following new Section 2.1:




     2.1 Base Compensation. For all the services rendered by Executive hereunder,
the Company shall pay Executive an annual salary at the rate of Two Hundred Sixty Thousand
and 00/100 Dollars ($260,000) for each full year of the Employment Term, payable in
installments at such times as the Company customarily pays its other senior officers (but
in any event no less often than monthly); provided, however, that from and after January 2,
2007, said annual salary rate shall increase to Two Hundred Sixty Seven Thousand Eight
Hundred and 00/100 Dollars ($267,800). The Company agrees that the Executive’s salary
will be reviewed at least annually to determine if an increase is appropriate, which
increase shall be in the sole discretion of the Company. Executive’s salary shall be
prorated for any partial year during which this Agreement remains in effect. Executive’s
annual salary paid from time to time is hereafter referred to as “Base Compensation”.



     3. Section 19 of the Original Agreement, as revised by the Third Amendment, shall be deleted
in its entirety and replaced with the following new Section 19:




     19. Entire Agreement. This Agreement, together with the Fourth Amendment and
Exhibit A thereto, which is incorporated herein by this reference, constitutes the
entire Agreement between the parties hereto with regard to Executive’s employment by the
Company and there are no agreements, understandings, specific restrictions, warranties or
representations, written or oral, relating to said subject matter between the parties other
than those set forth herein or herein provided for.



     4. Exhibit A of the Third Amendment shall be deleted in its entirety and replaced with
new Exhibit A attached hereto and incorporated herein by reference.



     5. Except as otherwise set forth herein, the Original Agreement, as modified by the Third
Amendment, shall remain unchanged and in full force and effect.



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     IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as of the date
first above written.



	 	 	 	 	 
	 	RARE HOSPITALITY MANAGEMENT, INC.

 	 
	 	By:  	/s/ Eugene I. Lee, Jr.
 	 
	 	 	President 	 
	 	 	 	 
	 
	 	EXECUTIVE

 	 
	 	/s/ Thomas W. Gathers
 	 
	 	THOMAS W. GATHERS 	 
	 	 	 



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EXHIBIT A



Executive and the Company agree that, for purposes of this Agreement, the “Restricted Area” shall
constitute the area within fifteen (15) miles of any of RARE’s restaurants in the following cities:




	 	 	 
	Alabama

	 	Daphne, Dothan, Hoover, Huntsville, Mobile,
Montgomery, Opelika, Oxford, Prattville
	 
	 	 
	Arizona

	 	Phoenix, Scottsdale
	 
	 	 
	Colorado

	 	Denver
	 
	 	 
	Connecticut

	 	Manchester
	 
	 	 
	Delaware

	 	Bear, Newark
	 
	 	 
	District of Columbia

	 	Washington, D.C.
	 
	 	 
	Florida

	 	Altamonte Springs, Boynton Beach, Brandon, Coral
Springs, Daytona Beach, Davie, Delray Beach, Destin,
Fleming Island, Ft. Lauderdale, Ft. Myers, Ft. Walton
Beach, Hollywood, Jacksonville, Jacksonville Beach,
Jensen Beach, Kissimmee, Lakeland, Lake Mary, Largo,
Melbourne, Merritt Island, Miami, Naples, Ocala,
Orange Park, Orlando, Palm Harbor, Panama City,
Pembroke Pines, Port Richey, Sarasota, St. Augustine,
St. Petersburg, Southchase, Tallahassee, Tampa,
Viera, West Palm Beach, Winter Haven
	 
	 	 
	Georgia

	 	Acworth, Albany, Alpharetta, Athens, Atlanta,
Augusta, Austell, Buford, Canton, Carrolton,
Cartersville, College Park, Columbus, Commerce,
Conyers, Covington, Cumming, Dalton, Dawsonville,
Douglasville, Duluth, East Point, Ellijay,
Fayetteville, Gainesville, Hiram, Jonesboro,
Kennesaw, LaGrange, Lawrenceville, Lithonia,
McDonough, Macon, Marietta, Morrow, Newnan, Peachtree
City, Perry, Pooler, Rome, Roswell, Savannah,
Snellville, Statesboro, Tifton, Tucker, Valdosta,
Warner Robins, Woodstock
	 
	 	 
	Illinois

	 	Chicago, Fairview Heights, Lombard, Norridge,
Oaklawn, Peoria, Springfield
	 
	 	 
	Indiana

	 	Avon, Bloomington, Carmel, Clarksville, E.
Indianapolis, Evansville, Indianapolis, Merrillville,
Portage, Southport
	 
	 	 
	Kansas

	 	Kansas City, Lawrence, Leawood, Topeka
	 
	 	 
	Kentucky

	 	Bowling Green, Brownsboro Crossing, Cold Springs,
Florence, Frankfort, Lexington, Louisville
	 
	 	 
	Louisiana

	 	St. Tammany
	 
	 	 
	Maine

	 	Auburn, Augusta, Bangor, Biddeford, South Portland
	 
	 	 
	Maryland

	 	Baltimore, Bowie, Columbia, E. Columbia, Frederick,
Gaithersburg, Germantown, Golden Ring, Hagerstown,
Landover, Laurel, Upper Marlboro, Waldorf






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	Massachusetts

	 	Boston, Braintree, Brockton, Burlington, Chestnut
Hill, Dedham, Framingham, Franklin, Haverhill,
Leominster, Mansfield, Marlboro, Methuen, Milford,
Millbury, North Attleboro, Peabody, Plymouth,
Raynham, Seekonk, Shrewsbury, Tewksbury, Watertown,
W. Springfield
	 
	 	 
	Michigan

	 	Allen Park, Auburn Hills, Clinton Township, Grand
Rapids, Roseville, Troy, Westland
	 
	 	 
	Minnesota

	 	Minneapolis
	 
	 	 
	Mississippi

	 	Hattiesburg, Southaven
	 
	 	 
	Missouri

	 	Ballwin, Belton, Chesterfield, E. Columbia,
Florissant, Hazelwood, Independence, Jefferson City,
Kansas City, O’Fallon, Lee’s Summit, St. Peters,
Sunset Hills
	 
	 	 
	Nevada

	 	Las Vegas
	 
	 	 
	New Hampshire

	 	Amherst, Bedford, Concord, Keene, Manchester, Nashua,
Newington
	 
	 	 
	New Jersey

	 	Flanders, Hamilton, Howell, Millville, Mt. Olive, New
Brunswick, Parsippany, Piscataway, Rochelle Park,
Woodbridge
	 
	 	 
	New York

	 	Albany, New York City, Poughkeepsie, Rochester
	 
	 	 
	North Carolina

	 	Apex, Asheville, Brier Creek, Burlington, Charlotte,
Concord, Gastonia, Greensboro, Greenville, Hickory,
High Point, Huntersville, Pineville, Wilmington,
Winston-Salem
	 
	 	 
	Ohio

	 	Beavercreek, Boardman, Cincinnati, Cleveland,
Columbus, Cuyahoga Falls, Dublin, Fairlawn, Fairview
Park, Gahana, Grove City, Independence, Mayfield
Heights, Maumee, Medina, Mentor, Moraine, North
Canton, Pickerington, Solon, Springdale, St.
Clairsville, Strongsville, West Chester, Wooster
	 
	 	 
	Pennsylvania

	 	Bensalem, Cranberry, Erie, Exton, Franklin Mills,
Harrisburg, Lancaster, Moosic, Norristown, Penns
Port, Philadelphia, Pittsburgh Mills, Pottstown,
Robinson, Stroudsburg, Warrington, Waterfront, West
Homestead, Whitman Square
	 
	 	 
	Rhode Island

	 	Providence, Warwick
	 
	 	 
	South Carolina

	 	Anderson, Columbia, Florence, Greenville, Hilton
Head, Mt. Pleasant, Myrtle Beach, N. Charleston, Rock
Hill, Spartanburg
	 
	 	 
	Tennessee

	 	Brentwood, Chattanooga, Clarksville, Gallatin,
Hermitage, Hixson, Jackson, Madison, Nashville
	 
	 	 
	Texas

	 	Dallas, Houston
	 
	 	 
	Vermont

	 	Williston
	 
	 	 
	Virginia

	 	Chantilly, Dulles, Massaponax, McLean, Williamsburg
	 
	 	 
	West Virginia

	 	Charleston, Morgantown
	 
	 	 
	Wisconsin

	 	Milwaukee







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