EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
the 7th day of February, 2000 (the "Effective Date"), between IHOP CORP., a
Delaware corporation (the "Company"), and Xxxx Xxxxx (the "Employee").
Whereas, the Board of Directors of the Company (the "Board") has
approved and authorized the entry into this Agreement with the Employee; and
Whereas, the parties desire to enter into this Agreement setting
forth the terms and conditions for the employment relationship of the
Employee with the Company.
Now, Therefore, in consideration of the promises and mutual
covenants and agreements herein contained and intending to be legally bound
hereby, the Company and the Employee hereby agree as follows:
1. Employment. The Employee is employed as Vice President - Finance,
Treasurer and Chief Financial Officer of the Company from the Effective Date
through the Term of this Agreement (as defined in Section 2 hereof). In this
capacity, the Employee shall have such duties and responsibilities as may be
designated to him by the Board from time to time and as are not inconsistent
with the Employee's position with the Company, including the performance of
duties with respect to any subsidiaries of the Company, as may be designated
by the Board. During the Employee's period of employment hereunder, the
Employee shall be based in the principal offices of the Company in Southern
California, and shall not be required to relocate outside of Southern
California to perform services hereunder, except for travel as reasonably
required in the performance of his duties hereunder.
2. Term. The "initial term" of this Agreement shall be for the period
commencing on the Effective Date and ending on the second anniversary of the
Effective Date; provided, however, that on the second anniversary of the
Effective Date, and on each subsequent anniversary date thereafter, the term of
this Agreement shall automatically be extended for one additional year unless,
not later than 90 days prior to such applicable anniversary date, the Company or
the Employee shall give notice not to extend this Agreement; and provided
further, however, that, if a Change in Control (as defined in Section 11(g))
occurs prior to the expiration of the Term of this Agreement, this Agreement
shall remain in full force and effect and shall not expire prior to the last day
of the 24th month following the date of such Change in Control. The "Term of
this Agreement" or "Term" shall mean, for purposes of this Agreement, both the
"initial term" (as hereinbefore described) and any additional term (created by
extension, as
described above), and the Term of this Agreement shall not be affected by the
Employee's termination of employment.
3. Salary. Subject to the further provisions of this Agreement, the
Company shall pay the Employee during the Term of this Agreement a salary at
an annual rate equal to $200,000, with such salary to be increased at such
times, if any, and in such amounts as determined by the Board, which
increases shall be consistent with the historical business practices of the
Company and the salary adjustments for other senior executives of the
Company. Such salary shall be payable by the Company to the Employee not less
frequently than monthly and shall not be decreased at any time during the
Term of this Agreement. Participation in deferred compensation, discretionary
bonus, retirement, and other employee benefit plans and in fringe benefits
shall not reduce the salary payable to the Employee under this Section.
4. Participation in Bonus, Retirement and Employee Benefit Plans.
The Employee shall be entitled to participate equitably with other senior
executives in any plan of the Company relating to bonuses, stock options,
stock purchases, pension, thrift, profit sharing, life insurance, medical
coverage, education, or other retirement or employee benefits that the
Company has adopted or may adopt for the benefit of its senior executives.
For purposes of the Company's Executive Incentive Plan, Employee's target
bonus will be 35% of his base pay.
5. Hiring Incentive. Upon the Effective Date, or as soon as
practicable thereafter, Employee shall receive an option to purchase a total
of 20,000 shares of IHOP Corp. common stock. Such stock option shall be
subject to the terms of the IHOP Corp. 1991 Stock Incentive Plan, as amended,
and a Stock Option Agreement setting forth, among other things, the option
exercise vesting schedule and option exercise price.
6. Fringe Benefits; Automobile. The Employee shall be entitled to
receive all other fringe benefits which are now or may be provided to the
Company's senior executives. In addition, the Company shall provide the
Employee during the Term of this Agreement with a car allowance of $700 per
month, plus reimbursement of all automobile expenses such as gasoline,
maintenance, insurance and vehicle registration, in accordance with the
Company's general policy on providing cars to senior executives.
Notwithstanding the foregoing, the benefits provided under this Section 6
shall cease upon the Employee's Date of Termination (as defined in Section
11(d)).
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7. Vacations. The Employee shall be entitled to an annual paid
vacation as determined in accordance with the Company's general policy for
senior executives.
8. Business Expenses. During such time as the Employee is rendering
services hereunder, the Employee shall be entitled to incur and be reimbursed
for all reasonable business expenses and be provided allowances as are
furnished to the Company's most senior executives under the Company's then
current policies. The Company agrees that it will reimburse the Employee for
all such expenses upon the presentation by the Employee, from time to time,
of an itemized account of such expenditures, setting forth the date, the
purposes for which incurred, and the amounts thereof, together with such
receipts showing payments in conformity with the Company's established
policies. Reimbursement shall be made within a reasonable period after the
Employee's submission of an itemized account.
9. Insurance and Indemnity. The Employee shall be added as an
additional named insured under all appropriate insurance policies now in
force or hereafter obtained covering any officers or directors of the
Company. The Company shall indemnify and hold the Employee harmless from any
cost, expense or liability arising out of or relating to any acts or
decisions made by the Employee on behalf of or in the course of performing
services for the Company to the same extent the Company indemnifies and holds
harmless other senior executive officers and directors of the Company and in
accordance with the Company's established policies.
10. Professional Services Allowance. The Employee shall be entitled
to reimbursement by the Company for expenses incurred by him for personal
legal, accounting, investment, estate planning services or other similar
services as outlined in the Company's Professional Services Allowance policy,
in an amount to be determined by the Board, but in no event greater than
$10,000 annually (or a pro rata portion of such amount for any period of
employment less than a full year); provided, however, that no reimbursement
shall be made for any such expenses incurred by the Employee after such
Employee's Date of Termination.
11. Termination.
(a) Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, he shall have been absent from the full-time
performance of his duties with the Company for 90 consecutive days or 180
days within any 12-month period, his employment may be terminated by the
Company for "Disability."
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(b) Cause. Subject to the notice provisions set forth below, the
Company may terminate the Employee's employment for "Cause" at any time.
"Cause" shall mean termination upon: (1) the willful failure by the Employee
to substantially perform his duties with the Company (other than any such
failure resulting from his incapacity due to physical or mental illness),
after a written demand for substantial performance is delivered to him by the
Board, which demand specifically identifies the manner in which the Board
believes that he has not substantially performed his duties; (2) the
Employee's willful misconduct that is demonstrably and materially injurious
to the Company, monetarily or otherwise; or (3) the Employee's commission of
such acts of dishonesty, fraud, misrepresentation or other acts of moral
turpitude as would prevent the effective performance of his duties. For
purposes of this subsection (b), no act, or failure to act, on the Employee's
part shall be deemed "willful" unless done, or omitted to be done, by him not
in good faith and without the reasonable belief that his action or omission
was in the best interest of the Company. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to him a copy of a resolution duly
adopted by the affirmative vote of a majority of the non-employee members of
the Board at a meeting of such members (after reasonable notice to him and an
opportunity for him, together with his counsel, to be heard before such
members of the Board), finding that he has engaged in the conduct set forth
above in this subsection (b) and specifying the particulars thereof in detail.
(c) Notice of Termination. Any termination of the Employee's
employment by the Company or by the Employee shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section
15. "Notice of Termination" shall mean a notice that indicates the specific
termination provision in this Agreement relied upon and sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
the termination of the Employee's employment under the provision so indicated.
(d) Date of Termination. "Date of Termination" shall mean: (1) if
the Employee's employment is terminated by his death, the date of his death;
(2) if the Employee's employment is terminated for Disability, 30 days after
Notice of Termination is given; and (3) if the Employee's employment is
terminated for any other reason, the date specified in the Notice of
Termination.
(e) Dispute Concerning Termination. If within the later of (i)
fifteen (15) days after Notice of Termination is given, or (ii) fifteen (15)
days prior to the Date of Termination (as determined without regard to this
Section 11(e), the party receiving such Notice of Termination notifies the
other party that a dispute
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exists concerning a termination by the Employee for Good Reason (as defined
in Section 11(h)) following a Change in Control (as defined in Section
11(g)), the Date of Termination shall be the earlier of the expiration date
of the Agreement, or the date on which the dispute is finally resolved,
either by mutual written agreement of the parties or by a final judgment,
order or decree of a court of competent jurisdiction (which is not appealable
or with respect to which the time for appeal therefrom has expired and no
appeal has been perfected); provided, however, that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence.
(f) Compensation During Dispute. If a purported termination by the
Employee for Good Reason occurs following a Change in Control and during the
Term of this Agreement, and such termination is disputed in accordance with
Section 11(e) hereof, the Company shall continue to pay the Employee the full
compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, salary) and continue the Employee as a
participant in all compensation, benefit and insurance plans in which the
Employee was participating when the notice giving rise to the dispute was
given, until the dispute is finally resolved in accordance with Section 11(e)
hereof or, if earlier, the expiration date of the Agreement. Amounts paid
under this Section 11(f) are in addition to all other amounts due under this
Agreement (other than those due under Section 12(b) hereof) and shall not be
offset against or reduce any other amounts payable under this Agreement.
(g) Change in Control. A "Change in Control" shall be deemed to have
occurred if the conditions set forth in any one of the following paragraphs
shall have been satisfied:
(i) any "person" (as such term is used in Sections 14(d) and 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
(other than the Company; any trustee or other fiduciary holding securities
under an employee benefit plan of the Company; or any Company owned, directly
or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of the stock of the Company) is or becomes
after the Effective Date the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
(not including in the securities beneficially owned by such person any
securities acquired directly from the Company or its affiliates) representing
25% or more of the combined voting power of the Company's then outstanding
securities; or
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(ii) during any period of two consecutive years (not including any
period prior to the Effective Date), individuals who at the beginning of such
period constitute the Board and any new director (other than a director
designated by a person who has entered into an agreement with the Company to
effect a transaction described in subparagraph (i), (iii) or (iv) of this
Section 11(g)) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least 2/3 of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (A) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the Company,
at least 75% of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no person
acquires more than 50% of the combined voting power of the Company's then
outstanding securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all the Company's assets.
(h) Good Reason. At any time following a Change in Control, the
Employee may terminate his employment hereunder for "Good Reason." "Good
Reason" shall mean the occurrence (without the Employee's express written
consent) of any material breach of this Agreement, including, without
limitation, any one of the following acts by the Company, or failures by the
Company to act, unless, in the case of any act or failure to act described in
subsections (i), (iv), (v), (vi) or (vii) below, such act or failure to act
is corrected prior to the Date of Termination specified in the Notice of
Termination given in respect thereof:
(i) the assignment to the Employee of any duties inconsistent with
the Employee's status as a senior executive of the Company or a substantially
adverse alteration in the nature or status of the Employee's responsibilities
from those in effect immediately prior to the Change in Control;
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(ii) a reduction by the Company in the Employee's annual base salary
as in effect on the date hereof or as the same may be increased from time to
time;
(iii) the relocation of the Company's principal offices to a
location outside Southern California (or, if different, the metropolitan area
in which such offices are located immediately prior to the Change in Control)
or the Company's requiring the Employee to be based anywhere other than the
Company's principal executive offices, except for required travel on the
Company's business to an extent substantially consistent with the Employee's
present business travel obligations;
(iv) the failure by the Company to pay to the Employee any portion
of the Employee's current compensation, or to pay to the Employee any portion
of an installment of deferred compensation under any deferred compensation
program of the Company, within seven days of the date such compensation is
due;
(v) the failure by the Company to continue in effect any
compensation plan in which the Employee participates immediately prior to the
Change in Control which is material to the Employee's total compensation,
unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or the failure by
the Company to continue the Employee's participation therein (or in such
substitute or alternative plan) on a basis not materially less favorable,
both in terms of the amount of benefits provided and the level of the
Employee's participation relative to other participants, as existed
immediately prior to the Change in Control;
(vi) the failure by the Company to continue to provide the Employee
with benefits substantially similar to those enjoyed by the Employee under
any of the Company's pension, life insurance, medical, health and accident,
or disability plans in which the Employee was participating immediately prior
to the Change in Control; or the taking of any action by the Company which
would directly or indirectly materially reduce any of such benefits or
deprive the Employee of any material fringe benefit enjoyed by the Employee
immediately prior to the Change in Control;
(vii) any purported termination of the Employee's employment which
is not effected pursuant to a Notice of Termination satisfying the
requirements of this Agreement; for purposes of this Agreement, no such
purported termination shall be effective; or
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(viii) any failure by the Company to comply with and satisfy Section
13(b) of this Agreement.
The Employee's right to terminate the Employee's employment for Good
Reason shall not be affected by the Employee's incapacity due to physical or
mental illness. The Employee's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
(i) Voluntary Termination. The Employee may terminate his employment
hereunder ("Voluntary Termination") upon a material breach of this Agreement
by the Company, unless the Company shall fully correct such breach within 30
days of the Employee's Notice of Termination given in respect thereof.
12. Compensation Upon Termination or During Disability. The Employee
shall be entitled to the following benefits during a period of disability, or
upon termination of his employment, as the case may be, provided that such
period or termination occurs during the Term of this Agreement:
(a) During any period that the Employee fails to perform his
full-time duties with the Company as a result of incapacity due to physical
or mental illness, he shall continue to receive his base salary at the rate
in effect at the commencement of any such period, together with all
compensation payable to him under the Company's disability plan or program or
other similar plan during such period, until his employment is terminated
pursuant to Section 11 hereof. Thereafter, or in the event the Employee's
employment shall be terminated by reason of his death, his benefits shall be
determined under the Company's retirement, insurance and other compensation
programs then in effect in accordance with the terms of such programs.
(b) If at any time the Employee's employment shall be terminated:
(i) by the Company for Cause or Disability or (ii) by him for any reason
(other than in a Voluntary Termination or for Good Reason following the
occurrence of a Change in Control), the Company shall pay him his full base
salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given, plus all other amounts to which he is
entitled through the Date of Termination under any compensation plan of the
Company at the time such payments are due, and the Company shall have no
further obligations to him under this Agreement.
(c) If the Employee's employment should be terminated: (1) by reason
of his death, (2) by the Company other than for Cause or Disability or (3) by
the
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Employee in a Voluntary Termination, he shall be entitled to the benefits
provided below:
(i) the Company shall pay to the Employee or the appropriate payee
(as determined in accordance with Section 13(c)) (A) his full base salary
through the Date of Termination at the rate in effect at the time Notice of
Termination is given; plus (B)(x) in the case of death or a Voluntary
Termination all salary and bonus payments that would have been payable to the
Employee pursuant to this Agreement for the remaining Term of this Agreement,
or (y) in all other cases, all salary and bonus payments that would have been
payable to the Employee had the Employee continued to be employed for a
period of 12 months, assuming for the purpose of such payments that his
salary for such remaining period is equal to his salary at the Date of
Termination and that his annual bonus for such remaining Term is equal to the
average of the annual bonuses paid to him by the Company with respect to the
three fiscal years ended immediately prior to the fiscal year in which the
Date of termination occurs; plus (C) all other amounts to which he is
entitled under any compensation plan of the Company, in cash in a lump sum no
later than the 15th day following the Date of Termination;
(ii) for a 12-month period after the Date of Termination, the
Company shall arrange to provide the Employee with life, disability, accident
and health insurance benefits substantially similar to those which the
Employee and his covered family members are receiving immediately prior to
the Notice of Termination (without giving effect to any reduction in such
benefits subsequent to a Change in Control); provided, however, that such
continued benefits shall be reduced to the extent comparable benefits are
actually received by or made available to the Employee without cost during
the 12-month period following the Employee's termination of employment (and
the Employee agrees that he shall promptly report any such benefits actually
received to the Company); and
(iii) the Company shall continue in effect for the benefit of the
Employee all insurance or other provisions for indemnification and defense of
officers or directors of the Company which are in effect on the date the
Notice of Termination is sent to the Employee with respect to all of his acts
and omissions while an officer or director as fully and completely as if such
termination had not occurred, and until the final expiration or running of
all periods of limitation against actions which may be applicable to such
acts or omissions.
(d) If the Employee's employment should be terminated by the
Employee for Good Reason following a Change in Control, he shall be entitled
to the benefits provided below:
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(i) the Company shall pay to the Employee or the appropriate payee
(as determined in accordance with Section 13(c)) (A) his full base salary
through the Date of Termination at the rate in effect at the time Notice of
Termination is given; plus (B)(x) in the case of death or a Voluntary
Termination all salary and bonus payments that would have been payable to the
Employee pursuant to this Agreement for the remaining Term of this Agreement,
or (y) in all other cases, all salary and bonus payments that would have been
payable to the Employee had the Employee continued to be employed for a
period of 24 months, assuming for the purpose of such payments that his
salary for such remaining period is equal to his salary at the Date of
Termination and that his annual bonus for such remaining Term is equal to the
average of the annual bonuses paid to him by the Company with respect to the
three fiscal years ended immediately prior to the fiscal year in which the
Date of termination occurs; plus (C) all other amounts to which he is
entitled under any compensation plan of the Company, in cash in a lump sum no
later than the 15th day following the Date of Termination;
(ii) for a 24-month period after the Date of Termination, the
Company shall arrange to provide the Employee with life, disability, accident
and health insurance benefits substantially similar to those which the
Employee and his covered family members are receiving immediately prior to
the Notice of Termination (without giving effect to any reduction in such
benefits subsequent to a Change in Control); provided, however, that such
continued benefits shall be reduced to the extent comparable benefits are
actually received by or made available to the Employee without cost during
the 24-month period following the Employee's termination of employment (and
the Employee agrees that he shall promptly report any such benefits actually
received to the Company); and
(iii) the Company shall continue in effect for the benefit of the
Employee all insurance or other provisions for indemnification and defense of
officers or directors of the Company which are in effect on the date the
Notice of Termination is sent to the Employee with respect to all of his acts
and omissions while an officer or director as fully and completely as if such
termination had not occurred, and until the final expiration or running of
all periods of limitation against actions which may be applicable to such
acts or omissions.
(e) Notwithstanding any other provisions of this Agreement, in the
event that any payment or benefit received or to be received by the Employee
in connection with the termination of the Employee's employment (whether such
benefit is pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, and all such payments and benefits
being hereinafter called "Total Payments") would not be deductible (in whole
or part), by the Company as a result of the application of Section 280G of
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the Internal Revenue Code of 1986, as amended ("Code"), then, to the extent
necessary to make the nondeductible portion of the Total Payments deductible,
(i) the cash payments under this Agreement shall first be reduced (if
necessary, to zero), and (ii) all other non-cash payments under this
Agreement shall next be reduced (if necessary, to zero).
(f) If it is established as described in the preceding subsection
(d) that the aggregate benefits paid to or for the Employee's benefit are in
an amount that would result in any portion of such "parachute payments" not
being deductible by reason of Section 280G of the Code, then the Employee
shall have an obligation to pay the Company upon demand an amount equal to
the sum of: (i) the excess of the aggregate "parachute payments" paid to or
for the Employee's benefit over the aggregate "parachute payments" that could
have been paid to or for the Employee's benefit without any portion of such
"parachute payments" not being deductible by reason of Section 280G of the
Code; and (ii) interest on the amount set forth in clause (i) of this
sentence at the rate provided in Section 1274(b)(2)(B) of the Code from the
date of the Employee's receipt of such excess until the date of such payment.
(g) The Employee shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise.
(h) If the employment of the Employee is terminated by the Company
without Cause or the Employee's employment is terminated by the Employee
under conditions entitling him to payment hereunder and the Company fails to
make timely payment of the amounts then owed to the Employee under this
Agreement, the Employee shall be entitled to interest on such amounts at the
rate of 1% above the prime rate (defined as the base rate on corporate loans
at large U.S. money center commercial banks as published by the Wall Street
Journal), compounded monthly, for the period from the date such amounts were
otherwise due until payment is made to the Employee (which interest shall be
in addition to all rights which the Employee is otherwise entitled to under
this Agreement).
13. Assignment.
(a) This Agreement is personal to each of the parties hereto. No
party may assign or delegate any rights or obligations hereunder without
first obtaining the written consent of the other party hereto, except that
this Agreement shall be binding upon and inure to the benefit of any
successor corporation to the Company.
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(b) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes this Agreement by operation of law, or otherwise.
(c) This Agreement shall inure to the benefit of and be enforceable
by the Employee and his personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Employee should die while any amount would still be payable to him
hereunder had he continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to his devisee, legatee or other designee or, if there is no such designee,
to his estate.
14. (a) Confidential Information. During the Term of this Agreement
and thereafter, the Employee shall not, except as may be required to perform
his duties hereunder or as required by applicable law, disclose to others for
use, whether directly or indirectly, any Confidential Information regarding
the Company. "Confidential Information" shall mean information about the
Company, its subsidiaries and affiliates, and their respective clients and
customers that is not available to the general public and that was learned by
the Employee in the course of his employment by the Company, including
(without limitation) any data, formulae, information, proprietary knowledge,
trade secrets and client and customer lists and all papers, resumes, records
and the documents containing such Confidential Information. The Employee
acknowledges that such Confidential Information is specialized, unique in
nature and of great value to the Company, and that such information gives the
Company a competitive advantage. Upon the termination of his employment, the
Employee will promptly deliver to the Company all documents (and all copies
thereof) containing any Confidential Information.
(b) Noncompetition. The Employee agrees that during the Term of this
Agreement, and for a period of one year thereafter, he will not, directly or
indirectly, without the prior written consent of the Company, provide
consultative service with or without pay, own, manage, operate, join,
control, participate in, or be connected as a stockholder, partner, or
otherwise with any business, individual, partner, firm, corporation, or other
entity which is then in competition with the Company or any present affiliate
of the Company; provided,
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however, that the "beneficial ownership" by the Employee, either individually
or as a member of a "group," as such terms are used in Rule 13d of the
General Rules and Regulations under the Exchange Act, of not more than 1% of
the voting stock of any publicly held corporation shall not be a violation of
this Agreement. It is further expressly agreed that the Company will or would
suffer irreparable injury if the Employee were to compete with the Company or
any subsidiary or affiliate of the Company in violation of this Agreement and
that the Company would by reason of such competition be entitled to
injunctive relief in a court of appropriate jurisdiction, and the Employee
further consents and stipulates to the entry of such injunctive relief in
such a court prohibiting the Employee from competing with the Company or any
subsidiary or affiliate of the Company in violation of this Agreement.
(c) Right to Company Materials. The Employee agrees that all styles,
designs, recipes, lists, materials, books, files, reports, correspondence,
records, and other documents ("Company Material") used, prepared, or made
available to the Employee, shall be and shall remain the property of the
Company. Upon the termination of his employment or the expiration of this
Agreement, all Company Materials shall be returned immediately to the
Company, and Employee shall not make or retain any copies thereof.
(d) Antisolicitation. The Employee promises and agrees that during
the Term of this Agreement, and for a period of one year thereafter, he will
not influence or attempt to influence customers, franchisees, landlords, or
suppliers of the Company or any of its present or future subsidiaries or
affiliates, either directly or indirectly, to divert their business to any
individual, partnership, firm, corporation or other entity then in
competition with the business of the Company, or any subsidiary or affiliate
of the Company.
15. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, or to such other
addresses as either party may have furnished to the other in writing in
accordance herewith, except that notice of a change of address shall be
effective only upon actual receipt:
Company: IHOP Corp.
000 Xxxxx Xxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000-0000
to the attention of the Board;
with a copy to: the Secretary of the Company
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Employee: Xxxx Xxxxx
000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxxx 00000.
16. Amendments or Additions. No amendments or additions to this
Agreement shall be binding unless in writing and signed by both parties
hereto.
17. Section Headings. The section headings used in this Agreement
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
18. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but both of which together
will constitute one and the same instrument.
20. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators in Los Angeles, California, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Employee shall be entitled to seek
specific performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in
connection with this Agreement.
21. Attorneys' Fees. The Company shall pay to the Employee all
out-of-pocket expenses, including attorneys' fees, incurred by the Employee
in connection with any claim, legal action or proceeding involving this
Agreement in which the Employee prevails in whole or in part, whether brought
by the Employee or by or on behalf of the Company or by another party. The
Company shall pay prejudgment interest on any money judgment obtained by the
Employee calculated at 3% above the prime rate (defined as the base rate on
corporate loans at large U.S. money center commercial banks as published by
the Wall Street Journal), from the date that payment(s) to the Employee
should have been made under this Agreement.
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22. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed
to in writing and signed by the Employee and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not expressly set forth in
this Agreement and this agreement shall supersede any prior understanding or
agreement either written or oral, will respect to the subject matter hereto.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of California without regard to
its conflicts of law principles. All references to sections of the Exchange
Act or the Code shall be deemed also to refer to any successor provisions to
such sections.
Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law. The
obligations of the Company under Section 12 and Section 20 and the
obligations of the Employee under Section 14 and Section 20 shall survive the
expiration of the Term of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement on the date first indicated above.
ATTEST: IHOP CORP.
By:
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Xxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxxx
Secretary President
EMPLOYEE:
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Xxxx Xxxxx
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