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EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the 1st
day of April, 2000 (the "Effective Date"), between IHOP CORP., a Delaware
corporation (the "Company"), and Robin L. Elledge (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-Human
Resources 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 her 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 her
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.
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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 $160,000, 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 her
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)).
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,
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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 her 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, she shall have been absent from the full-time
performance of her duties with the Company for 90 consecutive days or 180 days
within any 12-month period, her employment may be terminated by the Company for
"Disability."
(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 her duties with the Company (other than any such failure
resulting from her incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to her by the Board,
which demand specifically identifies the manner in which the Board believes that
she has not substantially performed her 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 her 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 her not in good faith
and without the
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reasonable belief that her 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 her 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 her and an opportunity for her ,
together with her counsel, to be heard before such members of the Board),
finding that she 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 her death, the date of her 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 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
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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
(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
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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 her 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;
(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
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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
(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 her 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 her 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 her full-time
duties with the Company as a result of incapacity due to physical or mental
illness, she shall continue to receive her base salary at the rate in effect at
the commencement of any such period, together with all compensation payable to
her under the Company's disability plan or program or other similar plan during
such period, until her employment is terminated pursuant to Section 11 hereof.
Thereafter, or in the event the Employee's employment shall be terminated by
reason of her death, her 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.
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(b) If at any time the Employee's employment shall be terminated: (i)
by the Company for Cause or Disability or (ii) by her 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 the Employee her 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 she 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 her
under this Agreement.
(c) If the Employee's employment should be terminated: (1) by reason
of her death, (2) by the Company other than for Cause or Disability or (3) by
the Employee in a Voluntary Termination, she 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) her 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 her salary for such remaining period is equal
to her salary at the Date of Termination and that her annual bonus for such
remaining Term is equal to the average of the annual bonuses paid to her 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 she 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 her
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 she 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
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with respect to all of her 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, she 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) her 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 her salary for such remaining period is equal
to her salary at the Date of Termination and that her annual bonus for such
remaining Term is equal to the average of the annual bonuses paid to her 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 she 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 her
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 she 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 her 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.
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(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 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 her 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 her 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 her hereunder
had she continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to her devisee,
legatee or other designee or, if there is no such designee, to her estate.
14. (a) Confidential Information. During the Term of this
Agreement and thereafter, the Employee shall not, except as may be required to
perform her 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 her 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 her employment, the Employee will promptly
deliver to the Company all documents (and all copies thereof) containing any
Confidential Information.
(b) Non-competition. The Employee agrees that during the Term of this
Agreement, and for a period of one year thereafter, she 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, 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
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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 her 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, she 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:
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<S> <C>
Company: IHOP Corp.
525 North Brand Blvd.
Glendale, California 91203-1903
to the attention of the Board;
with a copy to: the Secretary of the Company
Employee: Robin Elledge
525 North Brand Boulevard
Glendale California 91203.
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16. Amendments or Additions. No amendments or additions to this
Agreement shall be binding unless in writing and signed by both parties hereto.
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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 her 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.
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
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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:________________________________
Mark D. Weisberger Richard K. Herzer
Secretary President
EMPLOYEE:
___________________________________
Robin L. Elledge
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