Exhibit 10.30
I.C.H. CORPORATION
THIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
XXXXX X. ARABIA
THIS THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is
effective as of the 1st day of September, 1999, by and between I.C.H.
Corporation ("ICH"), a Delaware corporation with offices at 0000 Xxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000, and its subsidiaries, Sybra, Inc., a
Michigan corporation ("Sybra"), Lyon's of California, Inc., a California
corporation ("Xxxxx"), and Care Financial Corp., a Delaware corporation ("Care",
and collectively, with ICH, Sybra and Xxxxx, the "Companies"), each with offices
at c/o I.C.H. Corporation, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000 and Xxxxx X. Arabia, an individual residing at 0000 Xxx Xxxxxx,
Xxx Xxxxx, XX 00000 (the "Executive").
WHEREAS, Executive has served as Chairman, President and Chief
Executive Officer of ICH 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, 1998 (the "Prior Agreement") and prior
thereto and has taken on and will be taking on certain additional
responsibilities, including, without limitation, additional responsibilities
related to impending acquisitions, and through such service, has acquired
special and unique knowledge, abilities and expertise; and
WHEREAS, in recognition of Executive's past performance and
responsibilities and the additional responsibilities Executive has undertaken
and will be undertaking, ICH wishes to clarify certain terms set forth in the
Prior Agreement and desires to continue to employ Executive as its President and
Chief Executive Officer and to have Executive continue to serve as Chairman of
the Board of Directors of ICH (the "ICH Board") and the other Companies desire
to employ Executive in similar capacities and the Companies desire to employ
Executive in such capacities with any future subsidiaries of the Companies and
wish to be assured of his continued services on the terms and conditions
hereinafter set forth; and
WHEREAS, Executive desires to continue to be employed by ICH as its
President and Chief Executive Officer and to serve as Chairman of the ICH Board,
and by the other Companies and any future subsidiaries of the Companies in
similar capacities and to perform and to serve the Companies on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, agreements and covenants set forth herein, the parties hereto agree as
follows:
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1. EMPLOYMENT.
The Prior Agreement is hereby amended and restated in its entirety as
of the date of this Agreement.
(a) DUTIES. The Companies hereby agree to continue to employ
Executive, and Executive hereby accepts such continued employment, as the
President and Chief Executive Officer of ICH and agrees to serve as Chairman of
the ICH Board and as President and Chief Executive Officer and Chairman of the
Board of Directors of each of the other Companies. In his role as President and
Chief Executive Officer of ICH and the other Companies, Executive shall be
responsible for such duties and functions of a supervisory or managerial nature
as may be directed from time to time by the ICH Board and each other respective
Board of Directors provided that such duties are reasonable and customary for a
President and Chief Executive Officer. Executive agrees that he shall, during
the term of this Agreement, except during reasonable vacation periods, periods
of illness and the like, devote substantially all his business time, attention
and ability to his duties and responsibilities hereunder; PROVIDED, HOWEVER,
that nothing contained herein shall be construed to prohibit or restrict
Executive from (i) serving as a director of any corporation, with or without
compensation therefor; (ii) serving in various capacities in community, civic,
religious or charitable organizations or trade associations or leagues; or (iii)
attending to personal business; PROVIDED, HOWEVER, that no such service or
activity permitted in this Section 1(a) shall materially interfere with the
performance by Executive of his duties hereunder. Executive shall report
directly to the ICH Board and each other respective Board of Directors.
(b) TERM.
(i) Except as otherwise provided in this Agreement to
the contrary, the terms and conditions of this Agreement shall be and remain in
effect during the period of employment (the "Employment Period") established
under this Section 1(b). The initial Employment Period shall be for a term
commencing on the date of this Agreement and ending on the third anniversary of
the date of this Agreement; provided, however, that commencing on the first day
after the date of this Agreement and on each day thereafter, the Employment
Period shall be extended for one additional day so that a constant three (3)
year Employment Period shall be in effect, unless (A) ICH (on its behalf and on
behalf of the other Companies) or Executive elects not to extend the term of
this Agreement by giving written notice to the other party in accordance with
Sections 5(b) and 12 hereof, in which case, the term of this Agreement shall
become fixed and shall end on the third anniversary of the date of such written
notice ("Notice of Non-Renewal"), or (B) Executive's employment terminates
hereunder.
(ii) Notwithstanding anything contained herein to the
contrary, (A) Executive's employment with the Companies may be terminated by ICH
(on its behalf and on behalf of the other Companies) or Executive during the
Employment
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Period, subject to the terms and conditions of this Agreement; and (B) nothing
in this Agreement shall mandate or prohibit a continuation of Executive's
employment following the expiration of the Employment Period upon such terms and
conditions as the ICH Board and Executive may mutually agree.
(iii) If Executive's employment with the Companies is
terminated, for purposes of this Agreement, the term "Unexpired Employment
Period" shall mean the period commencing on the date of such termination and
ending on the last day of the Employment Period.
(c) LOCATION/TRAVEL. Executive shall work at ICH's
headquarters in San Diego County, California. Executive shall not be required to
relocate from the San Diego area during the Employment Period.
2. COMPENSATION. Subject to the provisions of Section 8 hereof, the
Companies shall each be responsible and have joint and several liability for all
compensation and benefits owed to Executive under this Agreement. A reference to
an ICH plan, program, obligation or commitment shall also be considered an
obligation or commitment of each of the other Companies but shall not result in
duplicate benefits being paid or provided to Executive.
(a) SALARY. Executive shall receive an annual base salary of
Five Hundred Twenty-Five Thousand Dollars ($525,000). 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
(the "ICH Compensation Committee"), as the case may be, 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 a formula
and subject to certain performance goals having been achieved (the "Formula"),
determined by the ICH Board, in its sole discretion, by the end of the first
quarter of each year. The target bonus payable to Executive for each fiscal year
based upon the Formula established by the ICH Board shall be an amount equal to
at least forty percent (40%) of Executive's Annual Base Salary for such year.
(ii) Executive's Annual Bonus shall be paid to
Executive no later than forty five (45) days following the end of the period for
which the bonus is being paid.
(c) REIMBURSEMENT OF BUSINESS EXPENSES. ICH shall reimburse
Executive for all reasonable out-of-pocket expenses incurred by him during the
Employment Period, including, but not limited to, all reasonable travel and
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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;
(ii) participate in all welfare plans established by
ICH such as life insurance, medical, dental, disability, and business travel
accident plans and programs and/or such other plan or programs of the other
Companies as ICH may designate from time to time. In addition, ICH shall
reimburse Executive for (i) any premium costs Executive may incur with respect
to the health insurance plan currently maintained by ICH (and which may be
maintained by ICH from time to time) in which Executive (and his spouse and
children) participates and (ii) for all other medical and dental expenses not
covered by any medical or dental plan in which Executive (and his spouse and
children) participates, including, without limitation, deductibles and out of
pocket expenses;
(iii) reimbursement from ICH for any premium costs
associated with the term life insurance in the amount of one and one-half
million dollars ($1,500,000.00) issued by Security Connecticut and currently
owned by Executive;
(iv) a minimum eight hundred dollars ($800) per month
local travel allowance;
(v) four (4) weeks paid vacation per year; and
(vi) any other benefits provided by ICH to its
executive officers.
(e) WITHHOLDING. ICH and/or the other Companies, as the case
may be, shall deduct from all compensation paid to Executive under this
Agreement, any Federal, State or city withholding taxes, social security
contributions and any other amounts which may be required to be deducted or
withheld by the Companies pursuant to Federal, State or city laws, rules or
regulations.
3. OPTION GRANT.
(a) (i) Executive has received options issued pursuant to
ICH's 1997 Employee Stock Option Plan, as amended (the "Stock Option Plan"), as
follows:
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HEREIN REFERRED GRANT DATE NUMBER OF SHARES EXERCISE VESTING
TO AS GRANTED PRICE PER
SHARE ($)
------------------ ------------------ ------------------- -------------- ------------------------------
1997 Options February 11, 1997 176,000 2.17 58,667 on February 11, 1997
58,667 on February 11, 1998
58,666 on February 11, 1999
------------------ ------------------ ------------------- -------------- ------------------------------
1998 Options September 1, 1998 74,000 4.00 18,500 on September 1, 1998
18,500 on September 1, 1999
18,500 on September 1, 2000
18,500 on September 1, 2001
------------------ ------------------ ------------------- -------------- ------------------------------
1999 Options May 7, 1999 100,000 12.25 25,000 on May 7, 1999
25,000 on January 1, 2000
25,000 on January 1, 2001
25,000 on January 1, 2002
------------------ ------------------ ------------------- -------------- ------------------------------
The terms and conditions of each option grant set forth above are memorialized
in written option grant agreements between ICH and Executive dated the dates
thereof. Such 1997 Options, 1998 Options and 1999 Options plus any additional
options granted to Executive in the future (collectively referred to herein as
the "Options") shall expire on the tenth anniversary of each respective grant
date.
(ii) The Options were and are intended to qualify as
incentive stock options within the meaning of Section 422(b) of the Internal
Revenue Code of 1986, as amended (the "Code"); PROVIDED, HOWEVER, that to the
extent that any Options do not satisfy the requirements of Section 422(b) of the
Code either at the time of grant or before or after exercise, including, without
limitation, upon disposition of the underlying stock acquired by the exercise of
Options prior to the requisite holding period, they shall be treated as
non-qualified stock options.
(b) In the event that Executive incurs taxable income as a
result of any or all of his Options being treated as non-qualified options (I.E.
Options have been exercised and the requirements of Section 422(b) of the Code
have not been or are no longer met) (the "Taxable Event") as soon as practicable
after a determination by ICH and Executive that the Options are non-qualified
and a Taxable Event has occurred, ICH shall make an additional single sum cash
payment to Executive in an amount equal to thirty percent (30%) of Executive's
taxable income resulting from the Taxable Event. Such payment shall only be made
in the event Executive's employment with ICH has not terminated for Cause within
the meaning of Section 5(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 ten
percent (10%) 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. LOANS TO EXECUTIVE.
(a) RESIDENCE LOAN.
(i) ICH has previously made a loan to Executive in a
principal amount of $350,000 for the purchase of a principal residence (the
"Residence Loan"). The Residence Loan accrues interest at an annual rate equal
to the published applicable federal rate (AFR) for loans of similar maturity at
the time the Residence Loan was granted. Principal plus interest is repayable on
a self-amortizing basis in years eight (8) through ten (10).
(ii) In the event Executive's employment is
terminated by ICH in connection with a Change in Control which is not approved
by the Continuing Directors of ICH, ICH shall on the consummation of such Change
in Control, forgive all principal and accrued interest then outstanding on the
Residence Loan. Additionally, on the consummation of such Change in Control, ICH
shall pay Executive, in one lump sum, a cash amount sufficient to gross up
Executive for the full tax consequences of such forgiveness so that on a net
after tax basis Executive shall be in the same position as if no taxable event
had occurred upon such forgiveness. The forgiveness of the Residence Loan and
the related gross up payment shall hereinafter be referred to as the "Residence
Loan Forgiveness".
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(b) 1997 OPTION LOANS.
(i) ICH has collectively loaned Executive Three
Hundred Eighty-One Thousand Nine Hundred Twenty Dollars ( $381,920) in order to
enable Executive to exercise all his 1997 Options (the "1997 Option Loans").
(ii) In the event (A) Executive remains in the
continuous employ of ICH during the period beginning on September 1, 1999 and
ending on December 31, 2001, (B) Executive's employment is terminated by ICH in
connection with a Change in Control not approved by the Continuing Directors of
ICH or without Cause or by Executive for Good Reason or (C) Executive's
employment is terminated due to his death or disability, ICH shall, on December
31, 2001, or in the case of such Change in Control, on the consummation of such
Change in Control, or in the case of such termination of Executive's employment,
on the date of termination, forgive all principal and accrued interest then
outstanding on such 1997 Option Loans. Additionally, on January 15, 2002 , or in
the case of a Change in Control not approved of by the Continuing Directors of
ICH, on the consummation of such Change in Control, or in the case of such
termination of employment, on the date of termination, ICH shall pay Executive
in one lump sum, a cash amount sufficient to gross up Executive for the full tax
consequences of such forgiveness so that on a net after tax basis Executive
shall be in the same position as if no taxable event had occurred upon such
forgiveness. The forgiveness of the 1997 Option Loans and the related gross up
payment shall hereinafter be referred to as the "1997 Option Loan Forgiveness".
(iii) ICH has and will require Executive to pledge a
sufficient amount of shares of Common Stock acquired upon exercise of his 1997
Options (the "Option Shares") to secure the 1997 Option Loans. The 1997 Option
Loans shall be secured only by the lesser of the full amount of the Option
Shares acquired at the time each loan was made or the number of Option Shares
having a fair market value of one hundred and twenty percent (120%) of the
outstanding principal amount of the 1997 Option Loans, together with interest
projected to accrue thereon through December 31, 2001 ("Maximum Amount Due"). On
each March 1 and each September 1, through the date the 1997 Option Loans are
either repaid or forgiven (each such date a "Determination Date"), ICH shall
reasonably determine the aggregate fair market value of the collateral (the
"Market Value") being held. If on such Determination Date the Market Value
exceeds the Maximum Amount Due, ICH shall, unless otherwise requested by
Executive, automatically release to Executive such portion of the collateral the
aggregate fair market value of which equals the Market Value less one hundred
and twenty percent (120%) of the Maximum Amount Due, free and clear of any and
all encumbrances under the related stock pledge agreements.
5. TERMINATION OF EMPLOYMENT; EVENTS OF TERMINATION.
(a) Executive's employment hereunder may be terminated during
the Employment Period under the following circumstances:
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(i) CAUSE. Executive's employment hereunder shall
terminate for "Cause" ten days after the date ICH
shall have given Executive notice of the termination
of his employment for "Cause". For purposes of this
Agreement, "Cause" shall mean (A) the commission by
Executive of fraud, embezzlement or an act of
serious, criminal moral turpitude against any of the
Companies; (B) the commission of an act by Executive
constituting material financial dishonesty against
any of the Companies; or (C) Executive's gross
neglect in carrying out his material duties and
responsibilities under this Agreement which has a
material adverse effect on any of the Companies and
which is not cured within thirty (30) days subsequent
to written notice from ICH to Executive of such
breach.
(ii) DEATH. Executive's employment hereunder shall
terminate upon his death.
(iii) DISABILITY. Executive's employment hereunder
shall terminate ten days after the date on which ICH
shall have given Executive notice of the termination
of his employment by reason of his physical or mental
incapacity or disability on a permanent basis. For
purposes of this Agreement, Executive shall be deemed
to be physically or mentally incapacitated or
disabled on a permanent basis if the ICH Board
determines he is unable to perform his duties
hereunder for a period exceeding six (6) months in
any twelve (12) month period.
(iv) GOOD REASON. Executive shall have the right to
terminate his employment for "Good Reason." This
Agreement shall terminate effective immediately on
the date Executive shall have given the ICH Board
notice of the termination of his employment with ICH
for "Good Reason." For purposes of this Agreement,
"Good Reason" shall mean (A) any material and
substantial breach of this Agreement by any of the
Companies, (B) a diminution of Executive's
responsibilities, loss of title or position in which
Executive currently serves, failure to reelect
Executive to the ICH Board or the Board of Directors
of any of the other Companies, reappoint Executive
Chairman of the ICH Board or Chairman of the Board of
Directors of any of the other Companies, or maintain
the composition of the Nomination Committee of the
ICH Board as it exists on the date hereof (I.E. with
Executive being its sole member), but not including
the loss of responsibilities and title 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
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immediately following the Change in Control, (D) ICH
issues a Notice of Non-Renewal to Executive, (E) a
reduction in Executive's Annual Base Salary or a
material reduction in other benefits (except for
bonuses or similar discretionary payments) as in
effect at the time in question, or any other failure
by the Companies to comply with Sections 2 and 3,
hereof, (F) the relocation of Executive's office
outside the San Diego area, or (G) this Agreement is
not assumed by a successor to ICH.
(v) WITHOUT CAUSE. ICH shall have the right to
terminate Executive's employment hereunder without
Cause subject to the terms and conditions of this
Agreement. In such event, this Agreement shall
terminate, effective immediately upon the date on
which ICH shall have given Executive notice of the
termination of his employment for reasons other than
for Cause or due to Executive's Disability.
(vi) WITHOUT GOOD REASON. Executive shall have the
right to terminate his employment hereunder without
Good Reason subject to the terms and conditions of
this Agreement. This Agreement shall terminate,
effective immediately upon the date as of which
Executive shall have given the ICH Board notice of
the termination of his employment without Good
Reason.
(b) NOTICE OF TERMINATION. Any termination of Executive's
employment by ICH or any such termination by Executive (other than on account of
death) shall be communicated by written Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated. In the event of the termination of Executive's
employment on account of death, written Notice of Termination shall be deemed to
have been provided on the date of death.
6. PAYMENTS UPON TERMINATION.
(a) WITHOUT CAUSE, FOR GOOD REASON OR DISABILITY. If
Executive's employment is terminated by ICH without Cause (pursuant to Section
5(a)(v)), by Executive for Good Reason (pursuant to Section 5(a)(iv)), or by ICH
due to Executive's Disability (pursuant to Section 5(a)(iii)), Executive, or in
the case of Executive's Disability, Executive's legal representative, shall be
entitled to receive from ICH (i) a lump sum payment in an aggregate amount equal
to four (4) times the sum of (A) then current Annual Base Salary and (B) the
average of all bonuses, including, without limitation, Executive's Annual Bonus
but excluding any loans forgiven or payments made by ICH pursuant to Section
4(b)(ii) hereof, earned by or paid to Executive during the two (2) immediately
preceding full fiscal years of employment ending prior to the
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date of termination (the "Severance Payment"); (ii) any bonuses which have been
earned but not been paid prior to such termination ("Prior Bonus Payment") and
(iii) reimbursement of expenses incurred prior to date of termination (the
"Expense Reimbursement"). The aforesaid amounts shall be payable in cash without
discount for early payment, at the option of Executive, either in full
immediately upon such termination or monthly over the Unexpired Employment
Period (the "Payment Election"). In addition, (x) Executive's fringe benefits
specified in Section 2 shall continue through the end of the Unexpired
Employment Period, provided, however, that such benefits which may not continue
pursuant to law, such as participation in a qualified pension plan, shall
terminate on the date of termination and further provided, that Executive shall
be entitled to COBRA continuation coverage and to continue the applicable life
insurance policies thereafter, at his cost ("Fringe Benefit Continuation); (y)
all outstanding Options which are not vested as of the date of termination, if
any, shall upon such date of termination vest and become immediately exercisable
in accordance with the terms of the Option grant agreements and this Agreement
("Vested Options") and (z) Executive shall be entitled to the 1997 Option Loan
Forgiveness as set forth in Section 4(b)(ii) hereof.
Any outstanding balance (principal and interest) of the
Residence Loan and any other loans made to Executive (except for the 1997
Options Loans which shall be forgiven as set forth in the paragraph above) by
ICH or any of the other Companies shall become due on the date of such
termination and shall be payable in a single sum payment. Any amounts owed by
Executive to ICH or the other Companies hereunder shall be set off against any
amounts payable from ICH or the other Companies to the Executive.
In the event Executive terminates his employment within the
six month period on or immediately following a Change in Control which
constitutes a termination for Good Reason under this Agreement pursuant to
Section 5(a)(iv)(C), Executive shall be entitled to receive from ICH an
additional lump sum cash payment in an amount sufficient to pay any excise taxes
which may be imposed on Executive pursuant to Section 4999 of the Code (or any
successor provisions) plus any excise or income tax liability on the gross up
payment itself so that on a net after tax basis Executive shall be in the same
position as if the excise tax under Section 4999 of the Code (or any successor
provisions) had not been imposed.
In the event Executive is terminated by ICH without Cause or
due to Executive's Disability, or Executive terminates his employment with ICH
for Good Reason, Executive shall have no duty to mitigate the amount of the
payment received pursuant to this Section 6(a), it being understood that
Executive's acceptance of other employment shall not reduce ICH's or the other
Companies' obligations hereunder.
(b) DEATH. If Executive's employment is terminated due to
death of Executive (pursuant to Section 5(a)(ii)), Executive's estate or
beneficiary(ies), as the case may be, shall be entitled to the proceeds of the
key man life insurance policy currently held by ICH (the "Death Benefit"). In
the event that the Death Benefit exceeds
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the sum of (i) sixty percent (60%) of the value of the Severance Payment and
(ii) the outstanding balance (principal and interest) of the Residence Loan and
any other loans made to Executive (except the 1997 Option Loans) by ICH or any
of the other Companies ((i) and (ii) being collectively referred to as, the
"Target Death Benefit"), such excess amount shall be due and payable by the
Executive's estate or beneficiary(ies) to ICH or the other Companies, as the
case may be, on the date of such termination in a single sum payment; PROVIDED,
HOWEVER, that the amount of such payment by the Executive's estate or
beneficiary(ies) shall not exceed the outstanding balance (principal and
interest) of the Residence Loan and any other loans made to Executive (except
the 1997 Option Loans) by ICH or any of the other Companies. In the event that
the Death Benefit is less than the Target Death Benefit, ICH shall pay the
amount of such difference to the Executive's estate or beneficiary(ies) on the
date of such termination in a single sum payment.
In addition, Executive's estate or beneficiary(ies), as the
case may be, shall be entitled to receive Executive's Prior Bonus Payment,
Vested Options, Expense Reimbursement, and the 1997 Option Loan Forgiveness as
set forth in Section 4(b)(ii) hereof and Executive's spouse and covered children
shall be entitled to receive Fringe Benefit Continuation to the extent
applicable.
Any amounts owed by Executive's estate or beneficiary(ies) to
ICH or any of the other Companies hereunder shall be set off against any amounts
payable from the Companies to the Executive's estate or beneficiary(ies), as the
case may be.
(c) TERMINATION WITH CAUSE OR VOLUNTARY QUIT. If ICH
terminates Executive's employment for Cause (pursuant to Section 5(a)(i)) or in
the event Executive voluntarily terminates his employment without Good Reason
(pursuant to Section 5(a)(vi)) ("Voluntary Quit"), Executive shall be entitled
to his Annual Base Salary through the date of the termination of such employment
and Executive shall be entitled to any bonuses which have been earned but not
paid prior to such termination. Executive shall not be entitled to any other
bonuses. Executive's additional benefits specified in Section 2 shall terminate
at the time of such termination and the entire outstanding balance (principal
and interest) of the Residence Loan, the 1997 Option Loans and any other loans
from ICH or any of the other Companies to Executive shall be due and owing on
date of such termination. Any amounts owed by Executive to ICH or the other
Companies hereunder shall be set off against any amounts payable from the
Companies to the Executive. Additionally, Executive shall be entitled to all
Options that have vested as of the date of such termination. All outstanding
Options, which have not vested, if any, as of date of such termination shall be
forfeited, and if the termination is for Cause, no further payments pursuant to
Section 3(b) shall be made to Executive.
(d) TERMINATION BY ICH UPON CHANGE IN CONTROL. If ICH
terminates Executive's employment for any reason in connection with a Change in
Control which is 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
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equal to the Severance Payment, the Prior Bonus Payment and the Expense
Reimbursement. The aforesaid amount shall be payable in cash without discount
for early payment on the consummation of such Change in Control. In addition,
any outstanding balances (principal and interest) of the Residence Loan, the
1997 Option Loans and any other loans made by ICH and any of the other Companies
to Executive shall be forgiven on the consummation of such Change in Control.
Executive shall be entitled to his Vested Options and Executive (and his spouse
and children) shall be entitled to Fringe Benefit Continuation. In addition to
the aforesaid cash payment, ICH shall pay Executive, on the consummation of the
Change in Control, in one lump sum, a cash payment (i) in an amount sufficient
to cover the full tax consequences of the forgiveness of any loans so that on a
net after tax basis Executive shall be the same as if no taxable events had
occurred upon such forgiveness (ii) in an amount sufficient to pay any excise
taxes which may be imposed on Executive pursuant to Section 4999 of the Code (or
any successor provisions) plus any excise or income tax liability on the gross
up payment itself so that on a net after tax basis Executive shall be the same
as if the excise tax under Section 4999 of the Code (or any successor
provisions) had not been imposed.
In the event Executive is terminated by ICH in connection with
a Change in Control which is not approved by the Continuing Directors of ICH,
Executive shall have no duty to mitigate the amount of the payment received
pursuant to this Section 6(d), it being understood that Executive's acceptance
of other employment shall not reduce the Companies obligations hereunder.
(e) VESTING TRUST. At Executive's option, the Companies shall
establish a vesting trust into which the Companies shall, to the extent
economically feasible, contribute and/or pledge assets to secure their severance
obligations to Executive under this Agreement.
7. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the
benefit of ICH, its successors and assigns. ICH shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all its assets to expressly assume and agree to perform
this Agreement in the same manner and to the same extent ICH would be required
to perform if no such succession had taken place.
(b) Executive agrees that this Agreement is personal to him
and may not be assigned by him other than by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
Executive's legal representative.
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8. JOINT AND SEVERAL LIABILITY.
(a) NO DUPLICATION OF PAYMENTS. The Companies shall be jointly
and severally liable for any amounts payable to Executive under this Agreement.
Any amounts payable to Executive shall be paid in the first instance by ICH, and
to the extent not paid by ICH shall be paid by the other Companies. In no event
shall any amount payable pursuant to this Agreement be paid by ICH and any other
Company, or any two or more Companies and Executive shall not be entitled to
receive duplicate benefits or payments under any of the provisions of this
Agreement.
(b) NEW SUBSIDIARIES. Any subsidiary of the Companies that is
formed or acquired on or after the date hereof shall be required to become a
signatory to this Agreement and shall become jointly and severally liable with
the Companies for the obligations hereunder.
(c) SALE OF SUBSIDIARIES. Upon the sale of the stock or
substantially all of the assets of any subsidiary of the Companies, which is
approved by the ICH Board, such subsidiary shall be automatically released from
its obligations hereunder and shall not be considered as having any continuing
liability for the obligations hereunder, and Executive shall be released from
his obligations to such subsidiary hereunder.
9. GOVERNING LAW. This Agreement shall be construed in accordance with,
and its validity, interpretation, performance and enforcement and shall be
governed by, the laws of the State of California without regard to conflicts of
law principles thereof. Each of the parties hereto hereby (a) irrevocably and
unconditionally submits to the non-exclusive jurisdiction of any California
State or Federal court sitting in San Diego County, California 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
12 hereof.
10. ENTIRE AGREEMENT.
(a) This instrument contains the entire understanding and
agreement among the parties relating to the subject matter hereof, except as
otherwise referred to herein, and supersedes all other prior agreements and
undertakings, both written and oral, among the parties with respect to the
subject matter hereof. The parties recognize that the Prior Agreement has been
amended and restated in its entirety by this Agreement and the terms of the
Prior Agreement are of no further force and effect.
(b) Neither this Agreement nor any provisions hereof may be
waived or modified, except by an agreement in writing signed by the party(ies)
against whom enforcement of any waiver or modification is sought.
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11. PROVISIONS SEVERABLE. In case any one or more of the provisions of
this Agreement shall be invalid, illegal or unenforceable in any respect, or to
any extent, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
12. NOTICES. Any notice required or permitted to be given under the
provisions of this Agreement shall be in writing and delivered by courier or
personal delivery, facsimile transmission (to be followed promptly by written
confirmation mailed 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
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
Facsimile Number: (000) 000-0000
With a copy to:
Xxxxxxxxxxx X. Sues, Esq.
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number: (000) 000-0000
If to Executive:
Xx. Xxxxx Arabia
0000 Xxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
If delivered personally, by courier or facsimile transmission (confirmed as
aforesaid and provided written confirmation and receipt is obtained by the
sender), the date on which a notice is delivered or transmitted shall be the
date on which such delivery is made. Notices given by mail as aforesaid shall be
effective and deemed received upon the date of actual receipt or upon the third
business day subsequent to deposit in the U.S. mail, whichever is earlier.
Either party hereto may change its or his address specified for notices herein
by designating a new address by notice in accordance with this Section 12.
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13. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and both of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Companies and Executive have executed this
Agreement as of the date first above written.
EXECUTIVE ICH CORPORATION
/S/ /S/
------------------------- --------------------------------------
XXXXX X. ARABIA NAME: Xxxx X. Xxxxx
TITLE: Executive Vice President and
General Counsel
SYBRA, INC.
/S/
--------------------------------------
NAME: Xxxx X. Xxxxx
TITLE: Executive Vice President and
General Counsel
LYON'S OF CALIFORNIA, INC.
/S/
--------------------------------------
NAME: Xxxx X. Xxxxx
TITLE: Executive Vice President and
General Counsel
CARE FINANCIAL CORP.
/S/
--------------------------------------
NAME: Xxxx X. Xxxxx
TITLE: Executive Vice President and
General Counsel
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