EXHIBIT 10.36
I.C.H. CORPORATION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is effective
as of the 29th day of June, 2000, 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 - Acquisitions &
Capital Markets and Corporate Counsel and in similar capacities for each of the
other Companies pursuant to his prior employment agreement with ICH and the
other Companies dated as of September 1, 1999 (the "Prior Agreement") and
through such service, has acquired special and unique knowledge, abilities and
expertise; and
WHEREAS, ICH desires to employ Executive as its Co-Chief Executive Officer
and to have Executive serve as Co-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 be employed by ICH as its Co-Chief Executive
Officer and to serve as Co-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.
(a) DUTIES. The Companies hereby agree to employ Executive, and
Executive hereby accepts such employment as the Co-Chief Executive Officer of
ICH and agrees to serve as Co-Chairman of the ICH Board and as Co-Chief
Executive Officer and Co-Chairman of the Board of Directors of each of the other
Companies. In his role as Co-Chief Executive Officer of ICH and the other
Companies, Executive shall be responsible for duties 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 an Co-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 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 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 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.
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(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 Three
Hundred Thousand Dollars ($300,000). 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, 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 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;
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(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 life insurance policy in the face amount of Two Million Dollars
($2,000,000) issued by Security Connecticut Life Insurance Company and currently
owned by Executive; provided, that such reimbursement shall not exceed
Seventy-Five Hundred Dollars ($7,500) per year;
(iv) a minimum Four Hundred Dollars ($400) per month
parking/transportation allowance;
(v) four (4) weeks paid vacation per year; and
(vi) any other benefits provided by ICH to its executive
officers.
(e) ONE TIME CASH BONUS. ICH has paid to Executive on January 1,
2000 a one time cash bonus in an amount equal to $35,004.38 that enabled
Executive to exercise 6,223 of the vested option shares granted to Executive on
February 15, 1999. In addition to the aforesaid cash bonus payment, ICH shall
pay Executive, on or prior to April 15th of the next following calendar year, a
cash payment in an amount equal to thirty percent (30%) of Executive's taxable
income resulting from the payment of the aforesaid cash bonus.
(f) WITHHOLDING. ICH and/or the other Companies, as the case may
be, shall deduct from all compensation paid to Executive under this Agreement,
any Federal, State or city withholding taxes, social security contributions and
any other amounts which may be required to be deducted or withheld by the
Companies pursuant to Federal, State or city laws, rules or regulations.
3. OPTION GRANT.
(a) (i) Executive has received options issued pursuant to ICH's 1997
Employee Stock Option Plan, as amended (the "Stock Option Plan") as follows:
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HEREIN GRANT DATE NUMBER OF EXERCISE VESTING
REFERRED SHARES PRICE/SHARE
TO AS GRANTED ($)
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1999 February 60,000 5.625 10,000 shares on February
Options 15, 1999 15, 1999, 20,000 shares
on each of January 1,
2000 and January 1, 2001
and 10,000 on January 1,
2002
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May 7, 1999 35,000 12.25 25% installments on May
7, 1999, January 1, 2000,
January 1, 2001 and
January 1, 2002
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2000 June 29, 35,000 5.06 50% on the grant date,
Options 2000 25% installments on
January 1, 2001 and
January 1, 2002
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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 1999 Options, 2000 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
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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 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 the ICH Board, 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:
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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) 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.
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(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 or reappoint Executive
Co-Chairman of the ICH Board or Co-Chairman of 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.
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(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.
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
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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.
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, if any, which have not vested, as of the 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
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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.
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
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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 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.
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(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: Board of Directors
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Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇▇ ▇. Sues, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Executive:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 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.
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- ------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ NAME: ▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: CO-CHAIRMAN AND CEO
SYBRA, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
NAME: ▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: CO-CHAIRMAN AND CEO
LYON'S OF CALIFORNIA, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
NAME: ▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: CO-CHAIRMAN AND CEO
CARE FINANCIAL CORP.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
NAME: ▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: CO-CHAIRMAN AND CEO
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