ICH CORPORATION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
▇▇▇▇▇ ▇. ARABIA
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is entered
into as of this 1st day of January, 1998, by and between, I.C.H. Corporation
(the "Company"), a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇. Arabia, an individual residing at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Executive").
WHEREAS, the Executive has served as President and Chief Executive
Officer of the Company pursuant to his prior employment agreement dated as of
February 11, 1997 (the "Prior Agreement") and prior thereto and has recently
taken the position as President and Chief Executive Officer of Sybra, Inc., the
principal operating subsidiary of the Company, and through such service, has
acquired special and unique knowledge, abilities and expertise; and
WHEREAS, the Company desires to continue to employ the Executive as its
President and Chief Executive Officer and to have the Executive serve as
Chairman of the Board of Directors of the Company (the "Board") and President
and Chief Executive Officer of Sybra, Inc. and wishes to be assured of his
continued services on the terms and conditions hereinafter set forth; and
WHEREAS, the Executive desires to continue to be employed by the Company
as its President and Chief Executive Officer and serve as Chairman of the Board
and to perform and to serve the Company on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, agreements and covenants set forth herein, the parties hereto agree as
follows:
1. Employment.
The Prior Agreement is hereby amended and restated in its entirety as of
the date of this Agreement.
(a) Duties. The Company hereby agrees to employ the Executive,
and the Executive hereby accepts such employment, as the President and Chief
Executive Officer of the Company and agrees to serve as Chairman of the Board.
In his role as President and Chief Executive Officer of the Company, the
Executive shall be responsible for such duties and functions of a supervisory or
managerial nature as may be directed from time to time by the Board provided
that such duties are reasonable
and customary for a President and Chief Executive Officer including his
managerial role with respect to the operations of Sybra, Inc. The Executive
agrees that he shall, during the term of this Agreement, except during
reasonable vacation periods, periods of illness and the like, devote
substantially all his business time, attention and ability to his duties and
responsibilities hereunder; provided, however, that nothing contained herein
shall be construed to prohibit or restrict the Executive from (i) serving as a
director of any corporation, with or without compensation therefor; (ii) serving
in various capacities in community, civic, religious or charitable organizations
or trade associations or leagues; (iii) attending to personal business including
conducting non-competing and non-conflicting business activities including
without limitation activities related to the maintenance and continuation of the
Executive's stock broker's license and related practice; provided, however, that
no such service or activity permitted in this Section 1(a) shall materially
interfere with the performance by the Executive of his duties hereunder. The
Executive shall report directly to the Board.
(b) Term.
(i) Except as otherwise provided in this Agreement to the
contrary, the terms and conditions of this Agreement shall be and remain in
effect during the period of employment (the "Employment Period") established
under this Section 1(b). The initial Employment Period shall be for a term
commencing on the date of this Agreement and ending on the third anniversary of
the date of this Agreement provided, however, that commencing on the first
anniversary of the date of this Agreement and on each anniversary thereafter,
the Employment Period shall be extended for one additional year, unless (A) the
Company or Executive elects not to extend the term of this Agreement by giving
written notice to the other party no more than ninety (90) days and no less than
thirty (30) days prior to the applicable anniversary date ("Notice of
Non-Renewal"), in which case, the term of this Agreement shall become fixed, or
(B) Executive's employment terminates hereunder.
(ii) Notwithstanding anything contained herein to the
contrary, (A) Executive's employment with the Company may be terminated by the
Company or Executive during the Employment Period, subject to the terms and
conditions of this Agreement; and (B) nothing in this Agreement shall mandate or
prohibit a continuation of Executive's employment following the expiration of
the Employment Period upon such terms and conditions as the Board and Executive
may mutually agree.
(iii) If Executive's employment with the Company is
terminated, for purposes of this Agreement the term "Unexpired Employment
Period" shall mean the period commencing on the date of such termination and
ending on the day the Employment Period would have terminated in the absence of
such employment termination and without further renewals.
2
(c) Location/Travel. The Executive shall work at the Company's
headquarters in San Diego County, California. The Executive shall not be
required to relocate from the San Diego area during the Employment Period.
2. Compensation.
(a) Salary. The Executive shall receive an annual base salary of
$235,000 which shall be payable to the Executive in accordance with the
Company's regular payroll practices. The annual base salary payable to the
Executive pursuant to this Section 2(a), which may be increased but not
decreased by the Board or the Compensation Committee of the Board (the
"Compensation Committee"), as the case may be, shall be hereinafter referred to
as the "Annual Base Salary."
(b) Annual Bonus. The Executive shall be entitled to receive an
annual cash bonus based upon a formula and subject to certain performance goals
having been achieved (the "Formula"), determined by the Board, in its sole
discretion, by the end of the first quarter of each year.
The target bonus payable to the Executive for the 1998 fiscal
year based upon the Formula established by the Board shall be $100,000.
(c) Bonus Payment. The bonus shall be paid to the Executive no
later than one hundred and twenty (120) days following the end of the period for
which the bonus is being paid.
(d) Reimbursement of Business Expenses. The Company shall
reimburse the Executive for all reasonable out-of-pocket expenses incurred by
him during the Employment Period including without limitation expenses in
connection with the Company's headquarters in San Diego, California. Such
expenses may include, but shall not be limited to, expenses incurred in
connection with the leasing of office space and office equipment and the
purchase of all reasonable and necessary office supplies. The Company shall also
promptly reimburse the Executive for reasonable out-of-pocket expenses incurred
by him pursuant to his employment hereunder, including but not limited to all
reasonable travel and entertainment expenses. The Executive may only obtain
reimbursement under this Section 2(d) upon submission of such receipts and
records as may be initially required by the Board and, thereafter, as may be
required under the reimbursement policies established by the Company.
(e) Additional Benefits; General Rights. The Executive shall be
entitled to participate in all employee stock option, pension, savings, and
other benefit plans including other welfare plans established by the Company
such as life insurance, medical, disability, and business travel accident plans
and programs. Executive shall be entitled to a minimum $300.00 per month local
travel allowance. In addition, the Company shall reimburse Executive for any
premium costs Executive may incur with respect to the health insurance plan
currently maintained by the Company (and which
3
may be maintained by the Company from time to time) in which Executive
participates. The Executive shall be entitled to four weeks paid vacation per
year and any other benefits provided by the Company to its executive officers.
(f) Withholding. The Company shall deduct from all compensation
paid to the Executive under this Agreement, any Federal, State or city
withholding taxes, social security contributions and any other amounts which may
be required to be deducted or withheld by the Company pursuant to Federal, State
or city laws, rules or regulations.
3. Option Grant.
(a) Upon execution of the Prior Agreement, Executive received
options issued pursuant to the Company's 1997 Employee Stock Option Plan (the
"Stock Option Plan"), to purchase up to 176,000 shares of common stock of the
Company, $0.01 par value (the "Common Stock"), at an exercise price per share
equal to $ 2.17 (such options plus any additional options granted to the
Executive in the future shall collectively be referred to herein as the
"Options"). Subject to Sections 3(b) and 6 below, such Options shall have vested
or vest, as applicable, and be exercisable as follows: 58,667 Options, effective
upon execution of the Prior Agreement; 58,667 Options, effective February 11th,
1998; and the balance 58,666, effective February 11th, 1999. The terms and
conditions of the Options granted to the Executive pursuant hereto are
memorialized in the written option grant agreement between the Company and
Executive dated February 11, 1997 ("Option Grant Agreement"), attached to the
Prior Agreement as Exhibit A. Such Options shall expire on February 11, 2007.
The Options granted to the Executive (as well as any which may be
granted to Executive) were and are intended to qualify as incentive stock
options within the meaning of Section 422(b) of the Internal Revenue Code of
1986, as amended (the "Code"); provided, however, that to the extent that any of
such Options do not satisfy the requirements of Section 422(b) of the Code
either before or after exercise including, without limitation, disposition of
the underlying stock acquired by the exercise of Options prior to the requisite
hold period, then they shall be treated as non-qualified stock options.
(b) In the event that Executive incurs taxable income as a result
of any or all of his Options being treated as non-qualified options (i.e.,
Options have been exercised and the requirements of Section 422(b) of the Code
have not been or are no longer met) (the "Taxable Event") as soon as practicable
after a determination by the Company and the Executive that the Options are
non-qualified and a Taxable Event has occurred, the Company shall make an
additional single sum cash payment to the Executive in an amount equal to thirty
(30%) percent of Executive's taxable income resulting from the Taxable Event.
Such payment shall only be made in the event Executive's employment with the
Company has not terminated for Cause within the meaning of Section 5(a)(i) of
this Agreement.
4
(c) Executive shall have thirty-six (36) months from the date of
termination of his employment to exercise Options; provided, however, that such
period does not extend beyond February 11, 2007. Executive understands that the
effect of exercising any incentive stock options on a day that is more than
ninety (90) days after the date of termination of employment (or, in the case of
a termination of employment on account of death or disability, on a day that is
more than one (1) year after the date of such termination) shall be to cause
such incentive stock options to be treated as non-qualified stock options.
(d) To the extent any Options are not vested upon a "Change in
Control" of the Company, such unvested Options shall become fully vested and
immediately exercisable upon a "Change in Control" of the Company. A "Change in
Control" of the Company shall be deemed to have occurred upon the happening of
any of the following events:
(i) approval by the Board of Directors or stockholders of
the Company of a transaction that would result in the
reorganization, merger, or consolidation of the Company
with one or more other "Persons" within the meaning of
Sections 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934 ("Exchange Act"), other than a transaction
following which:
(A) at least 71% of the equity ownership interests
of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by
Persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least
71% of the outstanding equity ownership interests
in the Company; and
(B) at least 71% of the securities entitled to vote
generally in the election of directors of the
entity resulting from such transaction are
beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by
Persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least
71% of the securities entitled to vote generally in
the election of directors of the Company;
(ii) the acquisition of all or substantially all of the
assets of the Company;
5
(iii) a complete liquidation or dissolution of the
Company, or approval by the stockholders of the Company of
a plan for such liquidation or dissolution;
(iv) the occurrence of any event in the nature of an event
described in this Section 3(d) if, immediately following
such event, at least seventy-five (75%) percent of the
members of the Board do not belong to any of the following
groups:
(A) individuals who were members of the Company's
Board on the date of this Agreement; or
(B) individuals who first became members of the
Board after the date of this Agreement either:
(I) upon election to serve as a member of
the Board by affirmative vote of
three-quarters of the members of such Board,
or of a nominating committee thereof, in
office at the time of such first election;
or
(II) upon election by the stockholders of
the Company to serve as a member of the
Board, but only if nominated for election by
affirmative vote of three-quarters of the
members of the Board, or of a nominating
committee thereof, in office at the time of
such first nomination; provided, however,
that such individual's election or
nomination did not result from an actual or
threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies
or consents (within the meaning of Rule
14a-11 of Regulation 14A promulgated under
the Exchange Act) other than by or on behalf
of the Board.
(v) one or more other "Persons" within the meaning of
Sections 13(d)(3) or 14(d)(2) of the Exchange Act, other
than an employee benefit plan sponsored by the Company,
becomes the "beneficial owner," as such term is used in
Section 13 of the Exchange Act, of thirty (30%) percent or
more of the Common Stock of the Company issued and
outstanding prior to such acquisition.
4. Loan. The Company hereby agrees to make a loan to Executive at such
time as Executive elects during the Employment Period in a principal amount of
$100,000 for the purchase of a principal residence (the "Loan"). The Loan shall
accrue
6
interest at an annual rate of eight and one-half (8.5%) percent with interest
only payable quarterly in arrears through payroll deduction in years one (1)
through seven (7). Principal plus interest shall be repayable on a
self-amortizing basis in years eight (8) through ten (10). All payments owed by
Executive shall be deducted from Executive's salary on a quarterly basis. To the
extent such salary payments are insufficient, the Executive shall pay any
balance owed on a timely basis after receipt of written notification from the
Company. The Executive shall be required to execute such evidences of
indebtedness and other documents as are reasonably necessary to effectuate the
Loan.
5. Termination of Employment; Events of Termination.
(a) Executive's employment hereunder may be terminated during the
Employment Period under the following circumstances:
(i) Cause. Executive's employment hereunder shall
terminate for "Cause" ten days after the date the Company
shall have given the Executive notice of the termination
of his employment for "Cause". For purposes of this
Agreement, "Cause" shall mean (A) the commission by the
Executive of fraud, embezzlement or an act of serious,
criminal moral turpitude; (B) the commission of an act by
the Executive constituting material financial dishonesty
against the Company; or (C) the Executive's gross neglect
in carrying out his material duties and responsibilities
under this Agreement which has a material adverse effect
on the Company and which is not cured within thirty (30)
days subsequent to written notice from the Company to the
Executive of such breach.
(ii) Death. Executive's employment hereunder shall
terminate upon his death.
(iii) Disability. Executive's employment hereunder shall
terminate ten days after the date on which the Company
shall have given the Executive notice of the termination
of his employment by reason of his physical or mental
incapacity or disability on a permanent basis. For
purposes of this Agreement, the Executive shall be deemed
to be physically or mentally incapacitated or disabled on
a permanent basis if the Board determines he is unable to
perform his duties hereunder for a period exceeding six
(6) months in any twelve (12) month period.
(iv) Good Reason. Executive shall have the right to
terminate his employment for "Good Reason." This Agreement
shall terminate effective immediately on the date the
Executive terminates his employment with the Company for
"Good Reason." For purposes
7
of this Agreement, "Good Reason" shall mean (A) any
material and substantial breach of this Agreement by the
Company, (B) a diminution of Executive's responsibilities,
loss of title, failure to reelect Executive to the Board
or reappoint Executive Chairman of the Board, (C) a Change
in Control occurs and the Executive voluntarily quits at
any time within the six (6) month period on or immediately
following the Change in Control, (D) the Company issues a
Notice of Non-Renewal to the Executive, (E) a reduction in
the Executive's Annual Base Salary or a material reduction
in other benefits (except for bonuses or similar
discretionary payments) as in effect at the time in
question, or any other failure by the Company to comply
with Sections 2 and 3, hereof, (F) the relocation of the
Executive's office outside the San Diego area, or (G) this
Agreement is not assumed by a successor to the Company.
(v) Without Cause. The Company shall have the right to
terminate the Executive's employment hereunder without
Cause subject to the terms and conditions of this
Agreement. In such event, this Agreement shall terminate,
effective immediately upon the date as of which the
Company terminates the Executive's employment for reasons
other than for Cause.
(vi) Without Good Reason. The Executive shall have the
right to terminate his employment hereunder without Good
Reason subject to the terms and conditions of this
Agreement. This Agreement shall terminate, effective
immediately upon the date as of which the Executive shall
have given the Board of Directors notice of his
termination without Good Reason.
(b) Notice of Termination. Any termination of Executive's
employment by the Company or any such termination by Executive (other than on
account of death) shall be communicated by written Notice of Termination to the
other party hereto. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated. In the event of the termination of
Executive's employment on account of death, written Notice of Termination shall
be deemed to have been provided on the date of death.
6. Payments Upon Termination.
(a) Death, Disability, Without Cause or for Good Reason. If the
Executive's employment is terminated due to death or disability of the Executive
(pursuant to Section 5(a)(ii) or (iii)), by the Company without Cause (pursuant
to Section 5(a)(v)), or by the Executive for Good Reason (pursuant to
8
Section 5(a)(iv)), the Executive (or, in the event of his death, his estate or
beneficiaries) shall be entitled to a payment in the amount of four hundred and
seventy thousand ($470,000) dollars payable in equal monthly installments over a
period of twelve (12) months beginning on the first day of the month next
following the date of termination of employment unless Executive makes an
election prior to receipt of the first installment hereunder to increase the
duration of such period up to a maximum of thirty-six (36) months; provided
however, that if such termination occurs pursuant to the provisions of Section
5(a)(iv)(C) above such payment shall be made in a single sum on the date of
termination without discount for early payment (the "Severance Period"). In
addition, any outstanding balance of the Loan (principal and interest) shall
become due on the date of such termination and shall be payable in equal
installments over the Severance Period with all repayments owed by Executive
being deducted from Executive's monthly installments or single sum payment as
the case may be or alternatively, on such other terms as Executive and the
Company may agree. Executive shall also be entitled to any bonuses which have
been earned but not been paid prior to such termination. Executive shall not be
entitled to any other bonuses. Executive's health insurance benefits specified
in Section 2(e) shall terminate on the last day of the Unexpired Employment
Period. Executive shall be entitled to COBRA continuation coverage thereafter,
at his cost. Additionally, all outstanding Options which are not vested as of
the date of termination, if any, shall upon such date of termination vest and
become immediately exercisable in accordance with the terms of the Option grant
agreement.
In the event the Executive is terminated by the Company without
Cause, or Executive terminates his employment with the Company for Good Reason,
the Executive shall have no duty to mitigate the amount of the payment received
pursuant to this Section 6(a), it being understood that the Executive's
acceptance of other employment shall not reduce the Company's obligations
hereunder.
(b) Termination With Cause or Voluntary Quit. If the Company
terminates the Executive's employment for Cause (pursuant to Section 5(a)(i)) or
in the event the Executive voluntarily terminates his employment without Good
Reason (pursuant to Section 5(a)(vi)), the Executive shall be entitled to his
Annual Base Salary through the date of the termination of his employment and the
Executive shall be entitled to any bonuses which have been earned but not paid
prior to such termination. The Executive shall not be entitled to any other
bonuses. The Executive's additional benefits specified in Section 2(e) shall
terminate at the time of such termination and the entire outstanding balance of
the Loan (principal and interest) shall be due and owing on date of termination.
Additionally, the Executive shall be entitled to all Options that have vested as
of the date of termination. All outstanding Options, which have not vested, if
any, as of date of termination shall be forfeited, and if the termination is for
Cause, no further payments pursuant to Section 3(b) shall be made to the
Executive.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Company, its successors and assigns. The Company
shall
9
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all its assets to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent the Company would be required to perform if no such succession had taken
place. Executive agrees that this Agreement is personal to him and may not be
assigned by him other than by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representative.
8. Governing Law. This Agreement shall be construed in accordance with,
and its validity, interpretation, performance and enforcement and shall be
governed by, the laws of the State of California without regard to conflicts of
law principles thereof.
9. Entire Agreement.
(a) This instrument contains the entire understanding and
agreement among the parties relating to the subject matter hereof, except as
otherwise referred to herein, and supersedes all other prior agreements and
undertakings, both written and oral, among the parties with respect to the
subject matter hereof. The parties recognize that the Prior Agreement has been
amended and restated in its entirety by this Agreement and the terms of the
Prior Agreement are of no further force and effect.
(b) Neither this Agreement nor any provisions hereof may be
waived or modified, except by an agreement in writing signed by the party
against whom enforcement of any waiver or modification is sought.
10. Provisions Severable. In case any one or more of the provisions of
this Agreement shall be invalid, illegal or unenforceable in any respect, or to
any extent, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
11. Notices. Any notice required or permitted to be given under the
provisions of this Agreement shall be in writing and delivered by courier or
personal delivery, facsimile transmission (to be followed promptly by written
confirmation mailed by certified mail as provided below) or mailed by certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company:
ICH Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
10
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to the Executive:
▇▇. ▇▇▇▇▇ Arabia
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If delivered personally, by courier or facsimile transmission (confirmed as
aforesaid and provided written confirmation and receipt is obtained by the
sender), the date on which a notice is delivered or transmitted shall be the
date on which such delivery is made. Notices given by mail as aforesaid shall be
effective and deemed received upon the date of actual receipt or upon the third
business day subsequent to deposit in the U.S. mail, whichever is earlier.
Either party hereto may change its or his address specified for notices herein
by designating a new address by notice in accordance with this Section 10.
12. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and both of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first above written.
EXECUTIVE ICH CORPORATION
/s/ ▇▇▇▇▇ ▇. Arabia /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------- --------------------
▇▇▇▇▇ ▇. Arabia Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
11