Exhibit 10.29
AGREEMENT, RELEASE AND WAIVER
Xxxxx X. Arabia, whose address is 0000 Xxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000 ("Executive") and I.C.H. Corporation, a Delaware corporation
with offices at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000
(hereinafter the "Company"), have reached the following Agreement, Release and
Waiver:
1. Executive's employment with the Company and Executive's Third
Amended and Restated Employment Agreement with the Company is terminated
effective June 15, 2000.
2. The Company agrees to:
(a) pay cash severance to Executive in the amount of
$3,280,000 which equals Executive's current annual base salary of $525,000, plus
Executive's average bonus for 1998 and 1999, $295,000 for a total of $820,000
multiplied by four (4). Executive will be entitled to elect a lump-sum payment
upon the effective date of this Agreement, Release and Waiver or payment in
equal monthly installments over a thirty-six (36) month period commencing with
the effective date of this Agreement, Release and Waiver;
(b) continue Executive's participation in the Company's
medical, life insurance, and dental plans for a thirty-six (36) month period
commencing with the effective date of this Agreement, Release and Waiver
including reimbursement 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 Executive's
spouse and children) participate and
(ii) all other medical and dental expenses not covered by any medical or dental
plan in which Executive (and Executive's spouse and children) participate,
including, without limitation, deductible and out-of-pocket expenses; (iii)
reimbursement from the Company for any premium costs associated with the term
life insurance in the amount of $1,500,000 issued by Security Connecticut and
currently owned by Executive. Thereafter, Executive may elect COBRA and continue
the life insurance policy, both at Executive's cost.
(c) pay Executive a monthly cash payment of $800 in lieu of a
local travel allowance for a thirty-six (36) month period commencing with the
effective date of this Agreement, Release and Waiver;
(d) vest Executive in all his currently outstanding options to
purchase Common Stock as of the effective date of this Agreement, Release and
Waiver, and recognize that Executive's stock option grant agreements remain in
full force and effect including the ten (10) year period from date of grant to
exercise options and the requirement that the Company pay Executive thirty (30%)
percent of any taxable amount incurred upon the exercise of non-qualified
options;
(e) forgive Executive's 1997 option loans plus accrued
interest in the aggregate amount of $425,047.70 and pay Executive a tax gross-up
payment of $390,470 between January 1, 2001 and January 15, 2001;
(f) forgive the remainder of Executive's 1998 bonus loan as of
the effective date of the Agreement, Release and Waiver in the amount of $33,
666 plus accrued interest and confirms the forgiveness on January 1, 2000 of a
portion of such loan in the amount of $33,334 plus accrued interest resulting in
forgiveness of an aggregate amount of $69,997.23 during the calendar year 2000;
(g) transfer to Executive title to the 1997 Lincoln Town Car
provided to Executive by the Company during his employment; and
(h) pay directly to Xxxxx & XxXxxxxx upon presentation of an
invoice Executive's attorney's fees incurred in negotiating this Agreement,
Release and Waiver up to a maximum of $3,500.
3. (a) Executive shall immediately resign (i) as Chairman of the
Board of Directors and from the Board of Directors of the Company, Sybra Inc.,
Lyon's of California, Inc. and Care Financial Corp.; (ii) as an officer of each
and every company identified in (i) above; and (iii) from any committee
Executive serves on with respect to any company identified in (i) above and
shall sign and deliver proper letters of resignation to such Boards upon
executing this Agreement, Release and Waiver.
(b) Executive acknowledges that he has used and been paid
appropriate compensation for all of the vacation days accrued by Executive
during his employment.
(c) The Company shall deduct from any cash amounts owed to
Executive pursuant to Section 2 above the following amounts:
(i) the house loan of $350,000 plus accrued
interest which in the aggregate is equal to
$374,843;
(ii) the year 2000 option exercise note of
$148,000 plus accrued interest which in the
aggregate is equal to $150,353.81;
(iii) the margin call loan of approximately
$165,000; and the Company payment of
approximately $406,000 of current margin
loans against Company stock currently owned
by Executive and to be paid by the Company
upon the effective date of this Agreement,
Release and Waiver which for purposes of
this deduction in the aggregate is equal to
$571,000. The Company agrees to pay such
loan by either wire transfer or journal
entry on the date of the execution of this
Agreement, Release and Waiver; and
(iv) $1,000 as payment for Executive's CPU which
will be destroyed by the Company.
so that a net amount shall be paid to Executive in full satisfaction of any and
all claims that he may have for payments or benefits in connection with any
services he rendered for the Company or the termination of those services.
(d) Any and all gross amounts payable to Executive or forgiven
as stated in Section 2 are subject to normal withholding, payroll taxes and
other applicable deductions; provided, however, that except as required by
applicable law as determined by the Company's independent accountant, (i) the
Company shall with respect to any payments made after the effective date of the
Agreement, Release and Waiver treat such payments as payments made to a non
employee and (ii) the Company shall issue a Form 1099 to Executive with respect
to such payments for reporting purposes. Except as set forth in Section 2,
Executive will receive no further or other compensation, payments or benefits
from the Company and Executive represents that he is not entitled to any other
compensation, payments or benefits.
4. Payment of the amounts identified in Section 2 above will be made or
commence to be made, as applicable, on the eighth (8th) day following the day
that Executive signs and returns to the Company this Agreement, Release and
Waiver together with any and all resignations, and returns to the Company all
Company documents, software, equipment, passwords, security codes and/or other
Company property in his custody or control (the "effective date of the
Agreement, Release and Waiver"). The payment made on the effective date of the
Agreement, Release
and Waiver shall be made by payroll check. Executive acknowledges and
understands that the Company has no policy for the payment of any amounts upon
termination of employees' services for cause, without cause, or resignation
except those specifically required by law or contract and Executive therefore
agrees that the payments made under Section 2 above are more than the Company is
required to pay under its policies and procedures.
5. (a) Executive agrees to release the Company, Sybra, Inc., Lyon's of
California, Inc., and Care Financial Corp. and any related entities, and the
present and former partners, employees, officers, attorneys, directors, agents
and representatives of any of them (hereinafter referred to as the "Releasees"),
from all claims or demands Executive may have against the Releasees (other than
claims or demands that may arise based on obligations of the Releasees under
this Agreement, Release and Waiver or any stock option grant agreement),
including, without limitation, claims or demands based on Executive's services
with the Company, the termination of those services, Executive's Third Amended
and Restated Employment Agreement and/or the termination of that agreement. This
includes a release of any rights or claims Executive may have under the Age
Discrimination in Employment Act, which prohibits age discrimination in
employment; Title VII of the Civil Rights Act of 1964, as amended, which
prohibits discrimination in employment based on race, color, national origin,
religion, or sex; the Equal Pay Act, which prohibits paying men and women
unequal pay for equal work; the Americans with Disabilities Act, which prohibits
discrimination in employment by reason of disability; or any other federal,
state, or local laws or regulations prohibiting discrimination. This also
includes a release by Executive of
any claims for breach of contract, wrongful discharge, promissory estoppel,
intentional tort and any other claims, or causes of action arising out of or
connected in any way to Executive's employment with the Company and the
termination of that employment. This release covers both claims that Executive
knows about and those he may not know about.
Executive hereby agrees that all rights under Section 1542 of the Civil
Code of the State of California are hereby waived by Executive. Section 1542
provides as follows:
A general release does not extend to claims which a creditor
does not know of or suspect to exist in his favor at the time
of executing the release, which if known by him must have
materially affected his settlement with the debtor.
Notwithstanding the provisions of Section 1542 of the Civil Code of the
State of California, Executive hereby irrevocably and unconditionally releases
and forever discharges Releasee, from any and all charges, complaints, claims
and liabilities of any kind or nature whatsoever, known or unknown, suspected or
unsuspected which Executive at any time heretofore had or claimed to have or
which Executive may have or claim to have regarding events that have occurred as
of the date of this Agreement Release and Waiver , including, without
limitation, any and all claims related in any manner to Executive's employment
or termination thereof.
The parties understand the word "claims" to include all actions, claims
and grievances, whether actual or potential, known or unknown, and specifically,
but not exclusively, all claims related to Executives employment or termination
thereof. All such claims (including attorneys' fees and costs) are forever
barred by the Agreement, Release and Waiver and without regard to whether those
claims are
based on any alleged breach of a duty arising in contract or tort, any alleged
unlawful act, or any other claim or cause of action and regardless of the forum
in which they might be brought.
(b) The Releasees hereby release Executive from any and all
claims or demands the Releasees may have against Executive (other than claims or
demands that may arise based on obligations of Executive under this Agreement,
Release and Waiver), including, without limitation, claims or demands the
Releasees may have against Executive based on Executive's services with the
Company, the termination of those services, Executive's Third Amended and
Restated Employment Agreement and/or the termination of that agreement, other
than claims or potential claims against Executive relating to any act of theft,
or embezzlement of a material amount against the Company, its subsidiaries and
affiliates to recover the amount of theft or embezzlement. In the event the
Company files a lawsuit based on claims against Executive relating to any act of
theft or embezzlement of a material amount against the Company, Executive shall
be entitled to reasonable attorney's fees from the Company upon a determination
that Executive is the prevailing party.
The Company hereby agrees that, other than with respect to claims or
potential claims against Executive relating to any act of theft or embezzlement
of a material amount against the Company, all rights under Section 1542 of the
Civil Code of the State of California are hereby waived by the Company. Section
1542 provides as follows:
A general release does not extend to claims which a creditor
does not know of or suspect to exist in his favor at the time
of executing the release, which if known by him
must have materially affected his settlement with the debtor.
Notwithstanding the provisions of Section 1542 of the Civil
Code of the State of California, the Company hereby irrevocably and
unconditionally releases and forever discharges Executive, from any and all
charges, complaints, claims and liabilities of any kind or nature whatsoever,
known or unknown, suspected or unsuspected which the Company at any time
heretofore had or claimed to have or which the Company may have or claim to have
regarding events that have occurred as of the date of this Agreement Release and
Waiver , including, without limitation, any and all claims related in any manner
to Executive's employment or termination thereof but excluding any claims or
potential claims against Executive relating to any act of theft or embezzlement
of a material amount against the Company.
6. (a) Executive promises never to file a lawsuit asserting any
claims that are released in Section 5 above. If Executive breaks his promise set
forth in this Section and files a lawsuit based on claims that have been
released, he shall repay to the Company the entire amount of the gross amounts
Executive received pursuant to Section 2 above. Moreover, if Executive breaks
his promise set forth in this Section and files a lawsuit based on claims that
have been released, he will pay for all costs incurred by the Releasees or any
of them, including their reasonable attorney's fees, in defending against
Executive's claims.
(b) The Company promises never to file a lawsuit asserting any
claims that are released in Section 5 above. Moreover, if the Company breaks its
promise set forth in this Section and files a lawsuit based on claims that have
been released, the Company will pay for all costs incurred by Executive,
including his
reasonable attorney's fees, in defending against the Company's claims.
7. (a) Executive promises not to discuss or disclose the terms of
his separation from the Company or the amount or nature of the benefits being
paid under this Agreement, Release and Waiver to any person other than his
spouse or other family members and his attorney and/or financial advisor, should
one be consulted, provided that those to whom he may make such disclosure agree
to keep said information confidential and not disclose it to others.
(b) Executive shall not disparage or make any statement which
might adversely affect the reputation of the Company, the Releasees, or any of
its or their subsidiaries, affiliates, employees, officers, directors or
representatives. Neither the Company, Releasees, nor any of its or their
subsidiaries, affiliates or management representatives shall disparage or make
any statement which might adversely affect the reputation of Executive. For the
purpose hereof, disparagement shall include, without limitation, any statement
accusing any of the aforesaid individuals or entities of acting in violation of
any law or governmental regulation or of condoning any such action.
(c) Executive shall not be required to mitigate amounts
payable pursuant to this Agreement, Release and Waiver by seeking other
employment or otherwise nor (except as contemplated by the terms of this
Agreement, Release and Waiver) shall there be any offset or requirement to
return such payments.
(d) The Company agrees that the press release regarding the
termination of Executive's employment shall not contain any information
regarding the circumstances surrounding such termination other than the
following information which shall be stated substantially in the following form:
ICH Corporation announced the replacement of Xxxxx X. Arabia
as Chairman, President and Chief Executive Officer of the
Company and its operating subsidiaries citing philosophical
differences regarding the Company's future growth strategy and
direction. Mr. Arabia resigned from such positions and as a
director of the Company at the request of the Board of
Directors;
In addition, such press release shall contain certain information related to a
one time charge to be taken by the Company as a result of the payments made to
Executive pursuant to this Agreement, Release and Waiver.
8. Executive shall maintain the confidentiality of all proprietary
information of the Company, Releasees, and any parent, subsidiary or affiliated
company including but not limited to proprietary information related to
financial, marketing, strategic or other plans and projections, pricing, rates
of return, client lists and related data of such entities. Executive
acknowledges that the Company and Releasees would be irreparably injured if any
such proprietary information were disclosed to any third person. Executive
states that he is not in possession of any property of the Company or any of the
Releasees. Executive hereby acknowledges that, in addition to the Company's
remedies at law, any breach of this Section shall be remediable by entry of an
injunction restraining such breach and enforcing this Section or other equitable
relief because money damages for such breach will not adequately compensate the
Company or Releasees. Executive expressly waives all rights to raise the
adequacy of the Company's or Releasees' other remedies at law as a defense
thereto. Nothing herein is intended to preclude Executive from working in the
restaurant or investment business or providing information to prospective
employers or investors regarding his background and qualifications, provided,
however, that such information shall not include any disclosure with
respect to non-public information regarding the Company, or its various
subsidiaries.
9. By making this Agreement, Release and Waiver, the Company does not
admit that it has done anything wrong. Nothing in this Agreement, Release and
Waiver shall be construed as an admission by the Company of any fact or issue
against its interest.
10. Each party shall be responsible for their own tax liability with
respect to payments made or benefits provided under this Agreement, Release and
Waiver.
11. Executive understands and acknowledges that the Company has given
Executive a period of twenty-one (21) days to review and consider this
Agreement, Release and Waiver before signing it. Executive further understands
that Executive may use as much of this twenty-one (21) day period as Executive
wishes prior to signing.
12. The Company strongly encourages Executive to consult with an
attorney prior to signing this Agreement, Release and Waiver. Executive
acknowledges that whether or not he does so is his decision and that he has had
ample opportunity to consult with an attorney before signing this Agreement,
Release and Waiver.
13. Executive may revoke this Agreement, Release and Waiver within
seven (7) days of the date on which Executive signs it by delivering a written
notice of revocation to the attorneys for the Company, Xxxxx Xxxxxxx Xxxxxxx &
Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxxxx X.
Sues, Esq. no later than the close of business on the seventh day after
Executive signs and delivers this Agreement, Release and Waiver to the Company
or its attorney. If
Executive revokes this Agreement, Release and Waiver, it shall not be effective
or enforceable and Executive will not receive the payments or benefits described
in Section 2 above.
14. Executive acknowledges that whether or not he signs this Agreement,
Release and Waiver or it becomes effective, Executive's services to the Company
end on the date set forth in Section 1 above.
15. This Agreement, Release and Waiver is the entire agreement between
Executive and the Company regarding the termination of Executive's services.
Executive acknowledges that the Company has made no promises to Executive other
than those contained in this Agreement, Release and Waiver.
EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT, RELEASE AND
WAIVER, UNDERSTANDS IT, AND IS VOLUNTARILY ENTERING INTO IT OF HIS OWN FREE
WILL, WITHOUT DURESS OR COERCION, AFTER DUE CONSIDERATION OF ITS TERMS AND
CONDITIONS. EXECUTIVE FURTHER ACKNOWLEDGES THAT EXCEPT AS STATED IN THIS
AGREEMENT, RELEASE AND WAIVER, THE COMPANY HAS MADE NO REPRESENTATIONS OR
PROMISES TO HIM.
I.C.H. CORPORATION ACCEPTED AND AGREED:
By: /S/ /S/
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Xxxxx X. Arabia
Date: Date:
