Exhibit 10.28
I.C.H. CORPORATION
EMPLOYMENT AGREEMENT
▇▇▇▇ ▇. ▇▇▇▇▇
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of the 1st day
of September, 1999, by and between I.C.H. Corporation ("ICH"), a Delaware
corporation with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇, and its subsidiaries, Sybra, Inc., a Michigan corporation ("Sybra"),
Lyon's of California, Inc., a California corporation ("▇▇▇▇▇"), and Care
Financial Corp., a Delaware corporation ("Care", and collectively, with ICH,
Sybra and ▇▇▇▇▇, the "Companies"), each with offices at c/o I.C.H. Corporation,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇, an individual residing at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Executive").
WHEREAS, Executive has served as Executive Vice President and General
Counsel and through such service, has acquired special and unique knowledge,
abilities and expertise; and
WHEREAS, ICH desires to continue to employ Executive as its Executive
Vice President and General Counsel and to have Executive continue to serve as a
member 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
Executive Vice President and General Counsel and to serve as a member 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.
(a) DUTIES. The Companies hereby agree to continue to
employ Executive, and Executive hereby accepts such continued employment, as the
Executive Vice President and General Counsel of ICH and agrees to serve as
member of the ICH Board and as Executive Vice President and General Counsel and
member of the Board of Directors of each of the other Companies. In his role as
Executive Vice President and General Counsel of ICH and the other Companies,
Executive shall be responsible for such duties and functions as may be directed
from time to time by ICH's
Chief Executive Officer and each other respective Chief Executive Officer,
provided, that such duties and functions are reasonable and customary for an
Executive Vice President and General Counsel. 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 ICH's Chief Executive Officer and each other respective Chief
Executive Officer.
(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 4(b) and 11 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 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 ICH's Chief Executive
Officer 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.
-2-
(c) LOCATION/TRAVEL. Executive shall work at ICH's offices
in New York, New York. Executive shall not be required to relocate from the
New York City area during the Employment Period.
2. COMPENSATION. Subject to the provisions of Section 7 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 Two Hundred Fifty Thousand Dollars ($250,000). The annual base salary
payable to Executive pursuant to this Section 2(a), which may be increased
but not decreased by ICH's Chief Executive Officer, shall be hereinafter
referred to as the "Annual Base Salary" (it being understood that if and when
such Annual Base Salary is increased, it may not be subsequently decreased
below such new 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
the performance of ICH and Executive as determined by ICH's Chief Executive
Officer in consultation with the ICH Board. The target Annual Bonus payable
to Executive for each fiscal year 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, including, 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 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;
-3-
(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) a minimum Four Hundred dollars ($400) per
month parking/transportation allowance;
(iv) four (4) weeks paid vacation per year; and
(v) any other benefits provided by ICH to its
executive officers.
(e) WITHHOLDING. ICH and/or the other Companies, as the
case may be, shall deduct from all compensation paid to Executive under this
Agreement, any Federal, State or city withholding taxes, social security
contributions and any other amounts which may be required to be deducted or
withheld by the Companies pursuant to Federal, State or city laws, rules or
regulations.
3. OPTION GRANT.
(a) (i) Executive has received options issued pursuant to
ICH's 1997 Employee Stock Option Plan, as amended (the "Stock Option Plan")
as follows (collectively, the "1998-1999 Options"):
------------------------- ------------------------ ------------------------ ------------------------------------------
GRANT DATE NUMBER OF SHARES EXERCISE PRICE/SHARE VESTING
GRANTED ($)
------------------------- ------------------------ ------------------------ ------------------------------------------
March 12, 1998 60,000 3.4375 25% installments on March 12, 1998,
January 1, 1999, January 1, 2000 and
January 1, 2001
------------------------- ------------------------ ------------------------ ------------------------------------------
September 1, 1998 10,000 4.00 25% installments on September 1, 1998,
January 1, 1999, January 1, 2000 and
January 1, 2001
------------------------- ------------------------ ------------------------ ------------------------------------------
February 15, 1999 10,000 5.625 25% installments on February 15, 1999,
January 1, 2000, January 1, 2001 and
January 1, 2002
------------------------- ------------------------ ------------------------ ------------------------------------------
-4-
------------------------- ------------------------ ------------------------ ------------------------------------------
May 7, 1999 35,000 12.25 25% installments on May 7, 1999, January
1, 2000, January 1, 2001 and January 1,
2002
------------------------- ------------------------ ------------------------ ------------------------------------------
The terms and conditions of each option grant set forth above are memorialized
in written option grant agreements between ICH and Executive dated the dates
thereof. Such 1998-1999 Options plus any additional options granted to Executive
in the future (collectively referred to herein as the "Options") shall expire on
the tenth anniversary of each respective grant date.
(ii) 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 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 4(a)(i) of this
Agreement.
(c) Notwithstanding any provisions in an Option grant
agreement to the contrary, upon termination of his employment for any reason,
Executive shall have the right to exercise his Options at any time through
the tenth anniversary of the grant date of such Options. 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 but excluding (i) the exercise of any currently
outstanding options or warrants, (ii) any future grants of options, but only
to the extent such grants relate to shares of Common Stock currently
-5-
authorized to be granted under the Stock Option Plan or the ICH 1997 Director
Stock Option Plan (collectively, the "Option Plans") (I.E. any options that may
be granted by virtue of an increase in the number of shares of Common Stock
currently authorized under the Option Plans shall not be excluded) and (iii) the
exercise of any of such options) 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 (the
"Issuance"), Executive shall be granted additional stock options and/or provided
with a loan to purchase Common Stock, as determined by ICH's Chief Executive
Officer, in an amount equal to three and one-half percent (3.5%) of the number
of shares issued pursuant to such Issuance. The foregoing notwithstanding, in
the event ICH repurchases any shares of Common Stock, stock convertible into
shares of Common Stock and/or any other security convertible into shares of
Common Stock, the anti-dilution provisions set forth in this Section 3(d) shall
not apply until an equal number of such shares of Common Stock, stock
convertible into shares of Common Stock and/or other securities convertible into
shares of Common Stock are first reissued by ICH. In addition, equitable
adjustments shall be made to such anti-dilution provisions in the event ICH
effectuates a stock split, reverse stock split, stock dividend or other
recapitalization transaction.
(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:
(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
-6-
(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 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
-7-
the Exchange Act) other than by or
on behalf of the ICH Board.
(v) in a single transaction or a series of
related transactions, 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 shares of
Common Stock of ICH (including newly issued shares)
which equal thirty percent (30%) or more of the
issued and outstanding shares of Common Stock of ICH
prior to such person or persons becoming such a
"beneficial owner."
(f) In the event of a conflict between the terms of any Option
grant agreement or the Stock Option Plan and this Agreement, the terms of this
Agreement shall control.
4. 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 against
any of the Companies; (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 ICH's Chief
Executive Officer determines he is unable to
-8-
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 ICH's Chief
Executive Officer 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, but not including the
loss of responsibilities and title 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
New York City 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 ICH's Chief
Executive Officer 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
-9-
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.
5. PAYMENTS UPON TERMINATION.
(a) WITHOUT CAUSE, FOR GOOD REASON, DEATH OR DISABILITY.
If Executive's employment is terminated by ICH without Cause (pursuant to
Section 4(a)(v)), by Executive for Good Reason (pursuant to Section 4(a)(iv)),
due to death of Executive (pursuant to Section 4(a)(ii)), or by ICH due to
Executive's Disability (pursuant to Section 4(a)(iii)), Executive, or in the
case of Executive's Death or Disability, Executive's legal representative estate
or beneficiaries, as the case may be, shall be entitled to receive from ICH (i)
a lump sum payment in an aggregate amount equal to three (3) times the sum of
(A) then current Annual Base Salary and (B) the average of all bonuses,
including, without limitation, Executive's Annual Bonus, earned by or paid to
Executive 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); and (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 and this Agreement ("Vested Options").
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 4(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.
-10-
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 5(a), it being understood that
Executive's acceptance of other employment shall not reduce ICH's or the other
Companies' obligations hereunder.
(b) TERMINATION WITH CAUSE OR VOLUNTARY QUIT. If ICH
terminates Executive's employment for Cause (pursuant to Section 4(a)(i)) or in
the event Executive voluntarily terminates his employment without Good Reason
(pursuant to Section 4(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. 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.
(c) 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 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. 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 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 5(c), it being understood that Executive's acceptance
of other employment shall not reduce the Companies obligations hereunder.
(d) 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.
-11-
6. 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.
7. JOINT AND SEVERAL LIABILITY.
(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.
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 New York without regard to conflicts
of law principles thereof. Each of the parties hereto hereby (a) irrevocably
and unconditionally submits to the non-exclusive jurisdiction of any New York
State or Federal court sitting in New York County, New York in any action or
proceeding arising out of or relating to this Agreement, (b) irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding, and (c)
irrevocably and unconditionally consents to the service of any and all
process in any such action or proceeding by the mailing of copies of such
process by certified mail to such party and its counsel at their respective
addresses specified in Section 11 hereof.
-12-
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.
(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.
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 ICH or any of the other Companies:
ICH Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇▇ ▇. Sues, Esq.
c/o Pryor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Executive:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
-13-
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 11.
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.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
-14-
IN WITNESS WHEREOF, the Companies and Executive have executed this
Agreement as of the date first above written.
EXECUTIVE ICH CORPORATION
/s/ /s/
------------------------------- -------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ NAME: ▇▇▇▇▇ ▇. Arabia
TITLE: Chairman and
Chief Executive Officer
SYBRA, INC.
/s/
-------------------------------
NAME: ▇▇▇▇▇ ▇. Arabia
TITLE: Chairman and
Chief Executive Officer
LYON'S OF CALIFORNIA, INC.
/s/
-------------------------------
NAME: ▇▇▇▇▇ ▇. Arabia
TITLE: Chairman and
Chief Executive Officer
CARE FINANCIAL CORP.
/s/
-------------------------------
NAME: ▇▇▇▇▇ ▇. Arabia
TITLE: Chairman and
Chief Executive Officer
-15-