ICH CORPORATION
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
▇▇▇▇▇ ▇. ARABIA
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is
effective as of the 1st day of September, 1998, by and between I.C.H.
Corporation ("ICH"), a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and its subsidiaries, Sybra, Inc., a
Michigan corporation, Sybra of California, Inc., a California corporation,
(collectively with Sybra, Inc., "Sybra"), Lyon's of California, Inc. a
California corporation, and Care Financial Corp., a Delaware corporation, each
with offices at c/o I.C.H. Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively with ICH and Sybra, the "Companies") and
▇▇▇▇▇ ▇. Arabia, an individual residing at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Executive").
WHEREAS, Executive has served as Chairman, President and Chief Executive
Officer of ICH and as Chairman, President and Chief Executive Officer of Sybra,
pursuant to his prior employment agreement with ICH dated as of January 1, 1998
(the "Prior Agreement") and prior thereto and has recently taken on and will be
taking on certain additional responsibilities, including, without limitation,
additional responsibilities related to impending acquisitions, and through such
service, has acquired special and unique knowledge, abilities and expertise; and
WHEREAS, in recognition of Executive's past performance and
responsibilities and the additional responsibilities Executive has undertaken
and will be undertaking, ICH desires to continue to employ Executive as its
President and Chief Executive Officer and to have Executive continue to serve as
Chairman of the Board of Directors of ICH (the "ICH Board") and the other
Companies desire to employ Executive in similar capacities and the Companies
desire to employ Executive in such capacities with any future subsidiaries of
the Companies and wish to be assured of his continued services on the terms and
conditions hereinafter set forth; and
WHEREAS, Executive desires to continue to be employed by ICH as its
President and Chief Executive Officer and to serve as Chairman of the ICH Board,
and by the other Companies and any future subsidiaries of the Companies in
similar capacities and to perform and to serve the Companies 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 Companies hereby agree to continue to employ
Executive, and Executive hereby accepts such continued employment, as the
President and Chief Executive Officer of ICH and agrees to serve as Chairman of
the ICH Board and as President and Chief Executive Officer and Chairman of the
Board of Directors of each of the other Companies. In his role as President and
Chief Executive Officer of ICH and the other Companies, 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 ICH Board and each other respective
Board of Directors provided that such duties are reasonable and customary for a
President and Chief Executive Officer. 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
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; or (iii)
attending to personal business; provided, however, that no such service or
activity permitted in this Section 1(a) shall materially interfere with the
performance by Executive of his duties hereunder. Executive shall report
directly to the ICH Board and each other respective Board of Directors.
(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 day
after the date of this Agreement and on each day thereafter, the Employment
Period shall be extended for one additional day so that a constant three (3)
year Employment Period shall be in effect, unless (A) ICH (on its behalf and on
behalf of the other Companies) or Executive elects not to extend the term of
this Agreement by giving written notice to the other party in accordance with
Sections 5(b) and 12 hereof, in which case, the term of this Agreement shall
become fixed and shall end on the third anniversary of the date of such written
notice ("Notice of Non-Renewal"), or (B) Executive's employment terminates
hereunder.
(ii) Notwithstanding anything contained herein to the
contrary, (A) Executive's employment with the Companies may be terminated by
ICH (on its behalf and on behalf of the other Companies) or Executive during the
Employment
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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 ICH Board and Executive may mutually agree.
(iii) If Executive's employment with the Companies 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 last day of the Employment Period.
(c) Location/Travel. Executive shall work at ICH's
headquarters in San Diego County, California. Executive shall not be required to
relocate from the San Diego area during the Employment Period.
2. Compensation. Subject to the provisions of Section 8 hereof, the
Companies shall each be responsible and have joint and several liability for all
compensation and benefits owed to Executive under this Agreement. A reference to
an ICH plan, program, obligation or commitment shall also be considered an
obligation or commitment of each of the other Companies but shall not result in
duplicate benefits being paid or provided to Executive.
(a) Salary. Executive shall receive an annual base salary of
Four Hundred Seventy-Five Thousand Dollars ($475,000) which shall be payable to
Executive on a bi-weekly basis. The annual base salary payable to Executive
pursuant to this Section 2(a), which may be increased but not decreased by the
ICH Board or the Compensation Committee of the ICH Board (the "ICH Compensation
Committee"), as the case may be, shall be hereinafter referred to as the "Annual
Base Salary."
(b) Annual Bonus.
(i) Executive shall be entitled to receive an annual cash
bonus, hereinafter referred to as the "Annual Bonus," based upon a formula and
subject to certain performance goals having been achieved (the "Formula"),
determined by the ICH Board, in its sole discretion, by the end of the first
quarter of each year. The target bonus payable to Executive for each fiscal year
based upon the Formula established by the ICH Board shall be an amount equal to
at least forty percent (40%) of Executive's Annual Base Salary for such year.
(ii) Executive's Annual Bonus shall be paid to Executive
no later than forty five (45) days following the end of the period for which the
bonus is being paid.
(c) Reimbursement of Business Expenses. ICH shall reimburse
Executive for all reasonable out-of-pocket expenses incurred by him during the
Employment Period. ICH shall also promptly reimburse Executive for reasonable
out-of-pocket expenses incurred by him pursuant to his employment hereunder,
including
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but not limited to all reasonable travel and entertainment expenses. Executive
may only obtain reimbursement under this Section 2(c) upon submission of such
receipts and records as may be initially required by the ICH Board and,
thereafter, as may be required under the reimbursement policies established by
ICH.
(d) Additional Benefits; General Rights. During the Employment
Period, Executive shall be entitled to:
(i) participate in all employee stock option, pension,
savings, and other similar benefit plans of ICH and/or such other plans or
programs of the other Companies as ICH may designate from time to time;
(ii) participate in all welfare plans established by ICH
such as life insurance, medical, dental, disability, and business travel
accident plans and programs and/or such other plan or programs of the other
Companies as ICH may designate from time to time. In addition, ICH shall
reimburse Executive for (i) any premium costs Executive may incur with respect
to the health insurance plan currently maintained by ICH (and which may be
maintained by ICH from time to time) in which Executive (and his spouse and
children) participates and (ii) for all other medical and dental expenses not
covered by any medical or dental plan in which Executive (and his spouse and
children) participates, including, without limitation, deductibles and out of
pocket expenses;
(iii) reimbursement from ICH for any premium costs
associated with the term life insurance in the amount of one and one-half
million dollars ($1,500,000.00) issued by Security Connecticut and currently
owned by Executive;
(iv) a minimum eight hundred dollars ($800) per month
local travel allowance;
(v) four (4) weeks paid vacation per year; and
(vi) any other benefits provided by ICH to its executive
officers.
(e) Withholding. ICH and/or the other Companies, as the case
may be, shall deduct from all compensation paid to 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 Companies pursuant to Federal, State or city laws, rules or
regulations.
3. Option Grant.
(a) (i) Upon execution of Executive's first employment
agreement with ICH dated February 11, 1997 (the "First Agreement"), Executive
received options issued pursuant to ICH's 1997 Employee Stock Option Plan, as
amended (the "Stock Option Plan"), to purchase up to 176,000 shares of common
stock of ICH, $0.01 par
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value (the "Common Stock"), at an exercise price per share equal to $ 2.17 (the
"1997 Options"). Subject to Sections 3(e) and 6 below, such 1997 Options shall
have vested or vest, as applicable, and are exercisable as follows: 58,667 1997
Options, effective upon execution of the First Agreement; 58,667 1997 Options,
effective February 11th, 1998; and the balance 58,666 1997 Options, effective
February 11th, 1999. The terms and conditions of the 1997 Options granted to
Executive are memorialized in the written option grant agreement between ICH and
Executive dated February 11, 1997 and attached to the First Agreement as Exhibit
A (the "1997 Option Grant Agreement"). Such 1997 Options shall expire on
February 11, 2007.
(ii) On the effective date of this Agreement, Executive
shall be granted additional options issued pursuant to the Stock Option Plan to
purchase up to 74,000 shares of Common Stock at an exercise price per share
equal to $4.00 (the "1998 Options"). Subject to Sections 3(e) and 6 below, such
1998 Options shall vest and be exercisable as follows: 18,500 1998 Options, on
the effective date of this Agreement; 18,500 1998 Options, effective on the
first anniversary of this Agreement; 18,500 1998 Options, effective on the
second anniversary of this Agreement and the balance 18,500 1998 Options,
effective on the third anniversary of this Agreement. The terms and conditions
of the 1998 Options granted to Executive are memorialized in the written option
grant agreement between ICH and Executive dated the date hereof and attached
hereto as Exhibits A and B (the "1998 Option Grant Agreements"). Such 1998
Options shall expire on September 1, 2008.
(iii) The 1997 Options, the 1998 Options plus any
additional options granted to Executive in the future (collectively referred to
herein as the "Options") 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 at the time of grant or before or after exercise, including, without
limitation, upon disposition of the underlying stock acquired by the exercise of
Options prior to the requisite holding period, 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 ICH and Executive that the Options are non-qualified
and a Taxable Event has occurred, ICH shall make an additional single sum cash
payment to Executive in an amount equal to thirty percent (30%) of Executive's
taxable income resulting from the Taxable Event. Such payment shall only be made
in the event Executive's employment with ICH has not terminated for Cause within
the meaning of Section 5(a)(i) of this Agreement.
(c) Upon termination of his employment for any reason,
Executive shall have the right to exercise his 1998 Options at any time through
September 1, 2008 and any additional options granted after the date hereof at
any time through the
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date they would otherwise expire if Executive had not terminated employment.
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) In the event ICH issues additional shares of Common Stock
and/or any class of stock convertible into Common Stock and/or any other
security convertible into Common Stock (including, without limitation, options
and warrants which may be granted to individuals or entities other than
employees and directors) at any time during the Employment Period and prior to
Executive's termination of employment and in connection with a public or private
equity offering or in connection with an acquisition, Executive shall be granted
additional stock options and/or provided with a loan, as determined by the ICH
Board, to purchase a sufficient amount of Common Stock so that the aggregate of
Executive's stock ownership (i.e. Common Stock owned plus options to purchase
Common Stock whether or not vested) in ICH shall equal ten percent (10.0%) of
the then Outstanding Stock less any shares sold or otherwise disposed of by
Executive on or after the date hereof.
Outstanding Stock shall mean all outstanding shares of
Common Stock, any class of stock convertible into Common Stock and any other
security convertible into Common Stock less shares of Common Stock outstanding
as a result of employee or director option exercises with the amount of such
reduction limited to one million nine hundred thousand (1,900,000) shares (i.e.,
the aggregate number of shares of Common Stock currently authorized under the
Stock Option Plan and the ICH 1997 Director Stock Option Plan) and adjustments
for stock repurchases and recapitalizations first being applied to reduce the
number of shares of Common Stock outstanding as a result of director and
employee option exercises.
(e) To the extent any Options are not vested upon a "Change in
Control" of ICH, such unvested Options shall become fully vested and immediately
exercisable upon a "Change in Control" of ICH (whether or not such Change in
Control is approved of by the Continuing Directors of ICH (as defined in the
Rights Agreement between ICH and Mid-America Bank of Louisville and Trust
Company dated as of February 19, 1997 and amended as of February 10, 1998)). A
"Change in Control" of ICH shall be deemed to have occurred upon the happening
of any of the following events:
(i) approval by the ICH Board or stockholders of ICH of a
transaction that would result in the reorganization,
merger, or consolidation of ICH 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:
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(A) at least seventy-one percent (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 seventy-one percent
(71%) of the outstanding equity ownership interests
in ICH; and
(B) at least seventy-one percent (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 seventy-one percent (71%) of
the securities entitled to vote generally in the
election of directors of ICH;
(ii) the acquisition of all or substantially all of the
assets of ICH;
(iii) a complete liquidation or dissolution of ICH, or
approval by the stockholders of ICH 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(e) if, immediately following
such event, at least seventy-five percent (75%) of the
members of the ICH Board do not belong to any of the
following groups:
(A) individuals who were members of the ICH Board
on the date of this Agreement; or
(B) individuals who first became members of the ICH
Board after the date of this Agreement either:
(I) upon election to serve as a member of
the ICH Board by affirmative vote of
three-quarters of the members of such ICH
Board, or of a nominating committee thereof,
in office at the time of such first
election; or
(II) upon election by the stockholders of
ICH to serve as a member of the ICH Board,
but only if nominated for election by
affirmative vote of three-quarters of the
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members of the ICH 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 ICH Board.
(v) one or more other Persons, other than an employee
benefit plan sponsored by ICH, becomes the "beneficial
owner," as such term is used in Section 13 of the Exchange
Act, of thirty percent (30%) or more of the Common Stock
of ICH issued and outstanding prior to such acquisition.
4. Loans to Executive.
(a) Residence Loan.
(i) ICH hereby agrees to make a loan to Executive at such
time as Executive elects during the Employment Period in a principal amount of
$350,000 for the purchase of a principal residence (the "Residence Loan"). The
Residence Loan shall accrue interest at an annual rate equal to the published
applicable federal rate (AFR) for loans of similar maturity at the time the
Residence Loan is granted. Principal plus interest shall be repayable on a
self-amortizing basis in years eight (8) through ten (10). Executive shall be
required to execute such evidences of indebtedness and other documents as are
reasonably necessary to effectuate the Residence Loan.
(ii) In the event Executive's employment is terminated by
ICH in connection with a Change in Control which is not approved by the
Continuing Directors of ICH, ICH shall on the consummation of such Change in
Control, forgive all principal and accrued interest then outstanding on the
Residence Loan. Additionally, on the consummation of such Change in Control, ICH
shall pay Executive, in one lump sum, a cash amount sufficient to gross up
Executive for the full tax consequences of such forgiveness so that on a net
after tax basis Executive shall be in the same position as if no taxable event
had occurred upon such forgiveness. The forgiveness of the Residence Loan and
the related gross up payment shall hereinafter be referred to as the "Residence
Loan Forgiveness".
(b) 1997 Option Loans.
(i) ICH has loaned Executive Two Hundred Fifty-Four
Thousand Six Hundred Fourteen Dollars and Seventy-Eight Cents ( $254,614.78) and
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shall to loan Executive One Hundred Twenty-Seven Thousand Three Hundred Five
Dollars and Twenty-Two Cents ( $127,305.22) on February 11, 1999 in order to
enable Executive to exercise all his 1997 Options (collectively, the "1997
Option Loans").
(ii) In the event (A) Executive remains in the continuous
employ of ICH during the period beginning on January 1, 1999 and ending on
December 31, 2001, (B) Executive's employment is terminated by ICH in connection
with a Change in Control not approved by the Continuing Directors of ICH or
without Cause or by Executive for Good Reason or (C) Executive's employment is
terminated due to his death or disability, ICH shall, on December 31, 2001, or
in the case of such Change in Control, on the consummation of such Change in
Control, or in the case of such termination of Executive's employment, on the
date of termination, forgive all principal and accrued interest then outstanding
on such 1997 Option Loans. Additionally, on January 15, 2002 , or in the case of
a Change in Control not approved of by the Continuing Directors of ICH, on the
consummation of such Change in Control, or in the case of such termination of
employment, on the date of termination, ICH shall pay Executive in one lump sum,
a cash amount sufficient to gross up Executive for the full tax consequences of
such forgiveness so that on a net after tax basis Executive shall be in the same
position as if no taxable event had occurred upon such forgiveness. The
forgiveness of the 1997 Option Loans and the related gross up payment shall
hereinafter be referred to as the "1997 Option Loan Forgiveness".
(iii) ICH has and will require Executive to pledge a
sufficient amount of shares of Common Stock acquired upon exercise of his 1997
Options (the "Option Shares") to secure each of the 1997 Option Loans. ICH
shall, as soon as practicable after the date hereof, determine with respect to
the first 1997 Option Loan and such loan shall be secured only by, the lesser of
the full amount of the Option Shares acquired at the time such loan was made or
the number of Option Shares having a fair market value of one hundred and twenty
percent (120%) of the outstanding principal amount of the first 1997 Option
Loan, together with interest projected to accrue thereon through December 31,
2001 ("Maximum Amount Due"). ICH shall reasonably determine the aggregate fair
market value of the collateral (the "Market Value") being held and shall release
to Executive such portion of the collateral the aggregate fair market value of
which equals the Market Value less one hundred and twenty percent (120%) of the
Maximum Amount Due, free and clear of any and all encumbrances under the related
stock pledge agreements. With respect to the second 1997 Option Loan to be made
to Executive on February 11, 1999, such loan shall initially be secured by the
full amount of Option Shares acquired at the time such loan was made. On each
March 1 and each September 1, through the date the 1997 Option Loans are either
repaid or forgiven (each such date a "Determination Date"), ICH shall reasonably
determine the Market Value of the collateral being held. If on such
Determination Date the Market Value exceeds the Maximum Amount Due, ICH shall,
unless otherwise requested by Executive, automatically release to Executive such
portion of the collateral the aggregate fair market value of which equals the
Market Value less one hundred and twenty percent (120%) of the Maximum Amount
Due, free and clear of any and all encumbrances under the related stock pledge
agreements.
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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 ICH shall
have given Executive notice of the termination of his
employment for "Cause". For purposes of this Agreement,
"Cause" shall mean (A) the commission by Executive of
fraud, embezzlement or an act of serious, criminal moral
turpitude; (B) the commission of an act by Executive
constituting material financial dishonesty against any of
the Companies; or (C) Executive's gross neglect in
carrying out his material duties and responsibilities
under this Agreement which has a material adverse effect
on any of the Companies and which is not cured within
thirty (30) days subsequent to written notice from ICH to
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 ICH shall have
given 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, Executive shall be deemed to be physically or
mentally incapacitated or disabled on a permanent basis if
the ICH 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
Executive shall have given the ICH Board notice of the
termination of his employment with ICH for "Good Reason."
For purposes of this Agreement, "Good Reason" shall mean
(A) any material and substantial breach of this Agreement
by any of the Companies, (B) a diminution of Executive's
responsibilities, loss of title or position in which
Executive currently serves, failure to reelect Executive
to the ICH Board or the Board of Directors of any of the
other Companies, reappoint Executive Chairman of the ICH
Board or Chairman of the Board of Directors of any of the
other Companies, or maintain the composition of the
Nomination Committee of the ICH Board as it exists on the
date hereof (i.e. with Executive being its sole member),
but not including the loss of responsibilities and title
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associated with any of the Companies other than ICH upon
the sale of the stock or substantially all of the assets
of such other Company, (C) a Change in Control occurs and
Executive voluntarily quits at any time within the six (6)
month period on or immediately following the Change in
Control, (D) ICH issues a Notice of Non-Renewal to
Executive, (E) a reduction in 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 Companies to comply with Sections 2 and 3, hereof, (F)
the relocation of Executive's office outside the San Diego
area, or (G) this Agreement is not assumed by a successor
to ICH.
(v) Without Cause. ICH shall have the right to terminate
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 on which ICH shall have given Executive notice of
the termination of his employment for reasons other than
for Cause or due to Executive's Disability.
(vi) Without Good Reason. 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 Executive shall have given the ICH
Board notice of the termination of his employment without
Good Reason.
(b) Notice of Termination. Any termination of Executive's
employment by ICH 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) Without Cause, for Good Reason or Disability. If Executive's
employment is terminated by ICH without Cause (pursuant to Section 5(a)(v)), by
Executive for Good Reason (pursuant to Section 5(a)(iv)), or by ICH due to
Executive's Disability (pursuant to Section 5(a)(iii)), Executive, or in the
case of Executive's Disability, Executive's legal representative, shall be
entitled to receive from ICH (i) a lump sum payment in an aggregate amount equal
to four (4) times the sum of (A) then
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current Annual Base Salary and (B) the average of Executive's Annual Bonus paid
during the two (2) immediately preceding full fiscal years of employment ending
prior to the date of termination (the "Severance Payment"); (ii) any bonuses
which have been earned but not been paid prior to such termination ("Prior Bonus
Payment") and (iii) reimbursement of expenses incurred prior to date of
termination (the "Expense Reimbursement"). The aforesaid amounts shall be
payable in cash without discount for early payment, at the option of Executive,
either in full immediately upon such termination or monthly over the Unexpired
Employment Period (the "Payment Election"). In addition, (x) Executive's fringe
benefits specified in Section 2 shall continue through the end of the Unexpired
Employment Period, provided, however, that such benefits which may not continue
pursuant to law, such as participation in a qualified pension plan, shall
terminate on the date of termination and further provided, that Executive shall
be entitled to COBRA continuation coverage and to continue the applicable life
insurance policies thereafter, at his cost ("Fringe Benefit Continuation); (y)
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 agreements ("Vested Options")
and (z) Executive shall be entitled to the 1997 Option Loan Forgiveness as set
forth in Section 4(b)(ii) hereof.
Any outstanding balance (principal and interest) of the Residence
Loan and any other loans made to Executive (except for the 1997 Options Loans
which shall be forgiven as set forth in the paragraph above) by ICH or any of
the other Companies shall become due on the date of such termination and shall
be payable in a single sum payment. Any amounts owed by Executive to ICH or the
other Companies hereunder shall be set off against any amounts payable from ICH
or the other Companies to the Executive.
In the event Executive terminates his employment within the six
month period on or immediately following a Change in Control which constitutes a
termination for Good Reason under this Agreement pursuant to Section
5(a)(iv)(C), Executive shall be entitled to receive from ICH an additional lump
sum cash payment in an amount sufficient to pay any excise taxes which may be
imposed on Executive pursuant to Section 4999 of the Code (or any successor
provisions) plus any excise or income tax liability on the gross up payment
itself so that on a net after tax basis Executive shall be in the same position
as if the excise tax under Section 4999 of the Code (or any successor
provisions) had not been imposed.
In the event Executive is terminated by ICH without Cause or due
to Executive's Disability, or Executive terminates his employment with ICH for
Good Reason, Executive shall have no duty to mitigate the amount of the payment
received pursuant to this Section 6(a), it being understood that Executive's
acceptance of other employment shall not reduce ICH's or the other Companies'
obligations hereunder.
(b) Death. If Executive's employment is terminated due to death
of Executive (pursuant to Section 5(a)(ii)), Executive's estate or
beneficiary(ies), as the
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case may be, shall be entitled to the proceeds of the key man life insurance
policy currently held by ICH (the "Death Benefit"). In the event that the Death
Benefit exceeds the sum of (i) sixty percent (60%) of the value of the Severance
Payment and (ii) the outstanding balance (principal and interest) of the
Residence Loan and any other loans made to Executive (except the 1997 Option
Loans) by ICH or any of the other Companies ((i) and (ii) being collectively
referred to as, the "Target Death Benefit"), such excess amount shall be due and
payable by the Executive's estate or beneficiary(ies) to ICH or the other
Companies, as the case may be, on the date of such termination in a single sum
payment; provided, however, that the amount of such payment by the Executive's
estate or beneficiary(ies) shall not exceed the outstanding balance (principal
and interest) of the Residence Loan and any other loans made to Executive
(except the 1997 Option Loans) by ICH or any of the other Companies. In the
event that the Death Benefit is less than the Target Death Benefit, ICH shall
pay the amount of such difference to the Executive's estate or beneficiary(ies)
on the date of such termination in a single sum payment.
In addition, Executive's estate or beneficiary(ies), as the case
may be, shall be entitled to receive Executive's Prior Bonus Payment, Vested
Options, Expense Reimbursement, and the 1997 Option Loan Forgiveness as set
forth in Section 4(b)(ii) hereof and Executive's spouse and covered children
shall be entitled to receive Fringe Benefit Continuation to the extent
applicable.
Any amounts owed by Executive's estate or beneficiary(ies) to ICH
or any of the other Companies hereunder shall be set off against any amounts
payable from the Companies to the Executive's estate or beneficiary(ies), as the
case may be.
(c) Termination With Cause or Voluntary Quit. If ICH
terminates Executive's employment for Cause (pursuant to Section 5(a)(i)) or in
the event Executive voluntarily terminates his employment without Good Reason
(pursuant to Section 5(a)(vi)) ("Voluntary Quit"), Executive shall be entitled
to his Annual Base Salary through the date of the termination of such employment
and Executive shall be entitled to any bonuses which have been earned but not
paid prior to such termination. Executive shall not be entitled to any other
bonuses. Executive's additional benefits specified in Section 2 shall terminate
at the time of such termination and the entire outstanding balance (principal
and interest) of the Residence Loan, the 1997 Option Loans and any other loans
from ICH or any of the other Companies to Executive shall be due and owing on
date of such termination. Any amounts owed by Executive to ICH or the other
Companies hereunder shall be set off against any amounts payable from the
Companies to the Executive. Additionally, Executive shall be entitled to all
Options that have vested as of the date of such termination. All outstanding
Options, which have not vested, if any, as of date of such termination shall be
forfeited, and if the termination is for Cause, no further payments pursuant to
Section 3(b) shall be made to Executive.
(d) Termination by ICH Upon Change in Control. If ICH
terminates Executive's employment for any reason in connection with a Change in
Control which is
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not approved by the Continuing Directors of ICH, Executive shall receive from
ICH in one lump sum, payable on the consummation of the Change in Control an
amount equal to the Severance Payment, the Prior Bonus Payment and the Expense
Reimbursement. The aforesaid amount shall be payable in cash without discount
for early payment on the consummation of such Change in Control. In addition,
any outstanding balances (principal and interest) of the Residence Loan, the
1997 Option Loans and any other loans made by ICH and any of the other Companies
to Executive shall be forgiven on the consummation of such Change in Control.
Executive shall be entitled to his Vested Options and Executive (and his spouse
and children) shall be entitled to Fringe Benefit Continuation. In addition to
the aforesaid cash payment, ICH shall pay Executive, on the consummation of the
Change in Control, in one lump sum, a cash payment (i) in an amount sufficient
to cover the full tax consequences of the forgiveness of any loans so that on a
net after tax basis Executive shall be the same as if no taxable events had
occurred upon such forgiveness (ii) in an amount sufficient to pay any excise
taxes which may be imposed on Executive pursuant to Section 4999 of the Code (or
any successor provisions) plus any excise or income tax liability on the gross
up payment itself so that on a net after tax basis Executive shall be the same
as if the excise tax under Section 4999 of the Code (or any successor
provisions) had not been imposed.
In the event Executive is terminated by ICH in connection with a
Change in Control which is not approved by the Continuing Directors of ICH,
Executive shall have no duty to mitigate the amount of the payment received
pursuant to this Section 6(d), it being understood that Executive's acceptance
of other employment shall not reduce the Companies obligations hereunder.
(e) Vesting Trust. At Executive's option, the Companies shall
establish a vesting trust into which the Companies shall, to the extent
economically feasible, contribute and/or pledge assets to secure their severance
obligations to Executive under this Agreement.
7. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the
benefit of ICH, its successors and assigns. ICH shall 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 ICH would be required
to perform if no such succession had taken place.
(b) 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
Executive's legal representative.
8. Joint and Several Liability.
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(a) No Duplication of Payments. The Companies shall be jointly
and severally liable for any amounts payable to Executive under this Agreement.
Any amounts payable to Executive shall be paid in the first instance by ICH, and
to the extent not paid by ICH shall be paid by the other Companies. In no event
shall any amount payable pursuant to this Agreement be paid by ICH and any other
Company, or any two or more Companies and Executive shall not be entitled to
receive duplicate benefits or payments under any of the provisions of this
Agreement.
(b) New Subsidiaries. Any subsidiary of the Companies that is
formed or acquired on or after the date hereof shall be required to become a
signatory to this Agreement and shall become jointly and severally liable with
the Companies for the obligations hereunder.
(c) Sale of Subsidiaries. Upon the sale of the stock or
substantially all of the assets of any subsidiary of the Companies, which is
approved by the ICH Board, such subsidiary shall be automatically released from
its obligations hereunder and shall not be considered as having any continuing
liability for the obligations hereunder, and Executive shall be released from
his obligations to such subsidiary hereunder.
9. 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.
10. 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(ies)
against whom enforcement of any waiver or modification is sought.
11. 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.
12. 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
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by certified mail as provided below) or mailed by certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to ICH or any of the other Companies:
ICH Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
c/o Pryor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to 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 12.
13. 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.
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IN WITNESS WHEREOF, the Companies and Executive have executed this
Agreement as of the date first above written.
EXECUTIVE ICH CORPORATION
/s/ ▇▇▇▇▇ ▇. Arabia /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------- ----------------------------
▇▇▇▇▇ ▇. Arabia Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
General Counsel
SYBRA, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
General Counsel
SYBRA OF CALIFORNIA, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
General Counsel
LYON'S OF CALIFORNIA, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
General Counsel
CARE FINANCIAL CORP.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
General Counsel
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