Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement (“Agreement”) is dated as of June 22,
2009 by and between DineEquity, Inc. f/k/a IHOP Corp., a Delaware
corporation (the “Company”),  and Jean Birch
(the “Executive”).


 


WHEREAS, the Company believes it to
be in its best interest to provide for continuity of management and to provide
protection for its valuable trade secrets and confidential information; and


 


WHEREAS, the Company desires to
employ the Executive and the Executive is willing to render services to the
Company on the terms and conditions with respect to such employment hereinafter
set forth.


 


NOW, THEREFORE, in consideration of premises
and the mutual terms and conditions hereof, the Company and the Executive
hereby agree as follows:


 


1.                                       Employment. The Company hereby employs the Executive and the
Executive hereby accepts employment with the Company upon the terms and
conditions hereinafter set forth.


 


2.                                       Exclusive Services. The Executive shall devote all necessary working
time, ability and attention to the business of the Company during the term of
this Agreement and shall not, directly or indirectly, render any material
services to any business, corporation, or organization whether for compensation
or otherwise, without the prior knowledge and written consent of the Board of
Directors of the Company (hereinafter referred to as the “Board”). During the
Employment Period, the Executive may (A) serve on corporate, civic or
charitable boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive’s responsibilities as an employee of the Company
in accordance with this Agreement and any service on public company boards of
directors is approved in advance by the Board. It is expressly understood and
agreed that to the extent that any such activities have been conducted by the
Executive prior to the effective date of this Agreement, the continued conduct
of such activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the effective date of this Agreement shall not
thereafter be deemed to interfere with the performance of the Executive’s
responsibilities to the Company.


 


3.                                       Duties. The Executive is hereby
employed as the President of the Company’s IHOP Business Unit and shall render
services at the principal business offices of the Company, as such may be
located from time to time, unless otherwise agreed in writing between the Board
and the Executive. The Executive shall have such authority and shall perform
such duties as are described in Exhibit A attached hereto.


 


4.                                       Term. This Agreement shall have an
initial term of three (3) years commencing as of June 22, 2009. This
Agreement will automatically renew at the end of the initial term and at the
end of each subsequent term, for a subsequent term of one (1) year unless
either party gives written notice of non-renewal to the other at least ninety
(90) days prior to the expiration of


 

















 


the
then current term. Such notice may be given for any or no reason. This
Agreement is subject to earlier termination as hereinafter provided.


 


5.                                       Compensation. As compensation
for services rendered under this Agreement, the Executive shall be entitled to
receive the following:


 


a.                                       Base Salary. The executive
shall be paid a base salary of at least $435,000 per year, payable in 24 equal
semi-monthly installments during the term of this Agreement, prorated for any
partial employment month. Such base salary (“Base
Salary”) shall be reviewed by the Compensation Committee of
the Board (the “Compensation Committee”) no less frequently than annually. The
Base Salary may be increased by the Compensation Committee in its discretion,
subject to ratification by the Board. The Base Salary may not be decreased,
except in the event of an across the board salary reduction approved by the
Board affecting employees of the Company at the Chief Officer Level (as defined
in Section 6(a), below).


 


b.                                      Additional Compensation. The Executive
shall be paid such additional compensation and bonuses as may be determined and
authorized in the discretion of the Compensation Committee, subject to
ratification by the Board. The Executive’s target bonus, to be payable under
the Company’s annual incentive plan, shall be 75% of the Executive’s Base
Salary.


 


6.                                       Benefits. In addition to
the compensation to be paid to the Executive pursuant to Section 5 hereof,
the Executive shall further be entitled to receive the following:


 


a.                                       Participation in Employee Plans. The Executive
shall be entitled to participate in any health, disability, group term life
insurance plan, any pension, retirement, or profit sharing plan, any executive
bonus plan, long term incentive plan, deferred compensation plan or any other
perquisites and fringe benefits that may be extended generally from time to
time to employees of the Company at the Chief Officer Level. For purposes of
this Agreement, employees of the Company at the “Chief
Officer Level” shall mean the CEO, the Chief Financial Officer, the
Chief Restaurant Support Officer and such other employees of the Company as may
from time to time be designated as being at the Chief Officer Level by the
Board.


 


b.                                      Vacation. The Executive
shall be entitled to vacation as in accordance with the Company’s Vacation
Policy for Restaurant Support Center and Field Office Employees.


 


c.                                       Equity Awards. The Executive
shall be entitled to equity-based compensation awards that may be extended
generally from time to time to employees of the Company at the Chief Officer
Level, as approved by the Compensation Committee or the Board, subject to the
terms and conditions of the respective equity-based compensation plans and
award agreements and the provisions of this Agreement.


 


7.                                       Reimbursement of Expenses. Subject to such
rules and procedures as from time to time are specified by the Company,
the Company shall reimburse the Executive on a monthly


 


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basis
for reasonable business expenses incurred in the performance of the Executive’s
duties under this Agreement.


 


8.                                         Confidentiality/Trade Secrets. The Executive
acknowledges that the Executive’s position with the Company is one of the
highest trust and confidence both by reason of the Executive’s position and by
reason of the Executive’s access to and contact with the trade secrets and
confidential and proprietary business information of the Company. Both during
the term of this Agreement and thereafter, the Executive covenants and agrees
as follows:


 


a.                                       The Executive shall use best
efforts and exercise reasonable diligence to protect and safeguard the trade
secrets and confidential and proprietary information of the Company, including
but not limited to any non-public strategies, business plans, marketing and
advertising plans, the identity of its customers and suppliers, its
arrangements with customers and suppliers, and its technical and financial
data, records, compilations of information, processes, recipes and
specifications relating to its customers, suppliers, products and services;


 


b.                                      The Executive shall not
disclose any of such trade secrets and confidential and proprietary
information, except as may be required in the course of the Executive’s
employment with the Company or by law; and


 


c.                                       The Executive shall not use,
directly or indirectly, for the Executive’s own benefit or for the benefit of
another, any of such trade secrets and confidential and proprietary
information.


 


All original and any copies of files, records, documents, emails,
drawings, specifications, memoranda, notes, or other documents relating to the
business of the Company, including printed, electronic or digital copies
thereof, whether prepared by the Executive or otherwise coming into the
Executive’s possession, shall be the exclusive property of the Company and
shall be delivered to the Company and not retained by the Executive upon
termination of the Executive’s employment for any reason whatsoever or at any
other time upon request of the Company’s General Counsel or the Board.


 


9.                                       Discoveries.  The Executive covenants and
agrees to fully inform the Company of and disclose to the Company all
inventions, designs, improvements, discoveries, and processes (“Discoveries”) that the Executive has now or may hereafter
have during the Executive’s employment with the Company and that pertain or
relate to the business of the Company, including but not limited to the
operation and franchising of restaurants, or to any experimental work,
products, services, or processes of the Company in progress or planned for the
future, whether conceived by the Executive alone or with others, and whether or
not conceived during regular working hours or in conjunction with the use of
any Company assets. All such Discoveries shall be the exclusive property of the
Company whether or not patent or trademark applications are filed thereon. The
Executive shall assist the Company, at any time during or after the Executive’s
employment, in obtaining patents on all such Discoveries deemed patentable by
the Company and shall execute all documents and do all things necessary to
obtain letters patent, vest the Company with full and exclusive title thereto,
and protect the same against infringement by others, all at the expense of the
Company.


 


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10.                                 Non-Competition. The Executive
covenants and agrees that during the period of the Executive’s employment, the
Executive shall not, without the prior written consent of the CEO or the Board,
directly or indirectly, as an employee, employer, consultant, agent, principal,
partner, shareholder, corporate officer, director, or through any other kind of
ownership (other than ownership of securities of publicly held corporations of
which the Executive owns less than five percent 5% of any class of outstanding
securities) or in any other representative or individual capacity, engage in or
render any services to any business in North America engaged in the casual
dining restaurant industry, the family dining restaurant industry, or in any
other segment of the restaurant industry in which the Company or any subsidiary
of the Company may become involved after the date hereof and prior to the date
of termination of the Executive’s employment. For purposes of this Agreement
“casual dining restaurant industry” consists of “sit down table service”
restaurants serving alcoholic beverages, with a per guest average guest check
within the United States of under $20.00 (adjusted upward each year to
recognize Company menu price increases). For purposes of this Agreement “family
dining restaurant industry” consists of “sit down table service” restaurants,
with a per guest average guest check within the United States of under $15.00
(adjusted upward each year to recognize Company menu price increases).


 


11.                                 Nonsolicitation. The Executive
agrees that during the period of the Executive’s employment, and for a period
of 24 months following the effective date of the termination of the Executive’s
employment for any reason prior to a Change in Control and 24 months following
the effective date of the termination after a Change in Control, the Executive
will not, either directly or indirectly, for the Executive or for any third
party, except as otherwise agreed to in writing by the then CEO, solicit,
induce, recruit, or cause any other person who is then employed by the Company
to terminate his/her employment for the purpose of joining, associating, or
becoming employed with any business or activity that is engaged in the casual
dining restaurant industry, the family dining restaurant industry or any other
segment of the restaurant industry in which the Company may become involved
after the date hereof and prior to the date of any termination of employment.


 


12.                                 Remedies for Breach of Covenants of the Executive.


 


a.                                       The Company and the
Executive specifically acknowledge and agree that the foregoing covenants of
the Executive in Sections 8, 9, 10 and 11 are reasonable in content and scope
and are given by the Executive for adequate consideration. The Company and the
Executive further acknowledge and agree that, if any court of competent
jurisdiction or other appropriate authority shall disagree with the parties’
foregoing agreement as to reasonableness, then such court or other authority
shall reform or otherwise the foregoing covenants as reason dictates.


 


b.                                      The covenants set forth in
Sections 8, 9, and 11 of this Agreement, as provided in Section 13 or 14,
shall continue to be binding upon the Executive, notwithstanding the
termination of the Executive’s employment with the Company for any reason
whatsoever. Such covenants shall be deemed and construed as separate agreements
independent of any other provisions of this Agreement and any other agreement
between the Company and the Executive. The existence of any claim or cause of
action by the Executive against the Company, unless predicated on this
Agreement,


 


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shall not constitute a defense to the enforcement by the Company of any
or all such covenants. It is expressly agreed that the remedy at law for the
breach of any such covenant is inadequate and injunctive relief and specific
performance shall be available to prevent the breach or any threatened breach
thereof.


 


c.                                       If the Executive breaches
any of the covenants set forth in Sections 8, 9, 10 and 11 of this Agreement,
the Executive shall reimburse the Company for (i) any equity-based
compensation received by the Executive from the Company during the twelve (12)
month period preceding the breach, and (ii) any profits realized from the
sale of securities of the Company during such twelve (12) month period.


 


13.                                 Termination. This Agreement (other than Sections 8, 9, and 11, as
provided in Section 13 or 14, which shall survive any termination hereof
for any reason, including the expiration hereof due to non-renewal (an
“Expiration”)) may be terminated as follows:


 


a.                                       The Company may terminate
this Agreement and the Executive’s employment hereunder at any time, with or
without Cause, upon written notice to the Executive. The Executive may
terminate this Agreement and the Executive’s employment hereunder, at any time,
with or without Good Reason.


 


b.                                      In the event of termination
by the Company without Cause or by the Executive for Good Reason, (i) the
effective date thereof shall be stated in a written notice to the Executive
from the Board, which shall not be earlier than 30 days from the date such
written notice is delivered to the Executive, (ii) the Executive shall be
entitled to receive all Severance Payments under Section 13(f), (iii) any
unvested stock options, stock appreciation rights, and any other equity-based
awards subject to service or time vesting conditions held by the Executive that
would have vested during the twelve (12) month period following the Executive’s
termination will vest as of the day immediately preceding the effective date of
termination, (iv) any unvested equity-based awards subject to any
performance-based vesting conditions held by the Executive will vest on a pro
rata basis, based on the number of days of the Executive’s employment during
the applicable performance period, as of the day immediately preceding the
effective date of termination and shall be paid based on actual performance during
the applicable performance period through the date of the Executive’s
termination of employment, and (v) any stock options or stock appreciation
rights held by the Executive shall remain exercisable until the earlier of 24
months after the date of termination or their original expiration date.


 


c.                                       In the event of termination
by the Company with Cause, the Executive shall be entitled to receive only the
Executive’s salary through such date of termination, the reimbursement of
properly documented reasonable business expenses incurred through such date of
termination, and any bonus amounts as may be payable pursuant to the terms of
any written plans in which the Executive was a participant immediately prior to
the effective date of the termination. The Executive shall also be entitled to
exercise the Executive’s rights under COBRA at the Executive’s expense.


 


d.                                      The following shall
constitute “Cause”:


 


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(i)                                     The willful failure by the
Executive to substantially perform the Executive’s duties with the Company
(other than any such failure resulting from the Executive’s incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Executive by the Board, which demand specifically
identifies the manner in which the Board believes that the Executive has not
substantially performed the Executive’s duties; or


 


(ii)                                  The Executive’s willful
misconduct that is demonstrably and materially injurious to the Company, monetarily
or otherwise; or


 


(iii)                               The Executive’s commission
of such acts of dishonesty, fraud, misrepresentation or other acts of moral
turpitude as would prevent the effective performance of the Executive’s duties;
or


 


(iv)                              The Executive’s conviction
or plea of no contest to a felony or a crime of moral turpitude.


 


For purposes of this subsection d., no act, or failure to act, on the
Executive’s part shall be deemed “willful” unless done, or omitted to be done,
by the Executive not in good faith and without the reasonable belief that the
Executive’s action or omission was in the best interest of the Company.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to the
Executive 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 the Executive and an opportunity for the Executive,
together with the Executive’s counsel, to be heard before such members of the
Board), finding that the Executive has engaged in the conduct set forth above
in this subsection d. and specifying the particulars thereof in detail.


 


e.                                       The Executive
shall have “Good Reason” to effect a termination in the event that the Company (i) breaches
its obligations to pay any salary, benefit or bonus due hereunder, or (ii) requires
the Executive to relocate more than 50 miles from the Company’s headquarters
[or other current location if not now located at headquarters], (iii) assigns
to the Executive any duties inconsistent with the Executive’s position with the
Company or significantly and adversely alters the nature or status of the
Executive’s responsibilities or the conditions of the Executive’s employment,
or (iv) reduces the Executive’s base salary and/or bonus opportunity,
except for across-the-board reductions similarly affecting all management
personnel of the Company and all management personnel of any corporation or
other entity which is in control of the Company; and in the event of any of
(i), (ii), (iii) or (iv), the Executive has given written notice to the
Board as to the details of the basis for such Good Reason within thirty (30)
days following the date on which the Executive alleges the event giving rise to
such Good Reason occurred, the Company has failed to provide a reasonable cure
within thirty (30) days after its receipt of such notice and the effective date
of the termination for Good Reason occurs within 180 days after the initial
existence of the facts or circumstances


 


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constituting Good Reason. In the event of a termination by the
Executive with Good Reason, the Executive will be entitled to all Severance
Payments under Section 13(f).


 


f.                                    The “Severance
Payments” consist of the following and, subject to subsection h. of Section 20,
shall be paid as follows: (i) an amount paid on the tenth business day
following the effective date of such termination in one lump sum equal to one (1) times
the sum of (A) the Executive’s annual Base Salary, at the then current
effective annual rate, plus (B) the average of the Executive’s actual
bonus attributable to each of the preceding three (3) fiscal years; (ii) the
reimbursement of properly documented reasonable business expenses incurred
through the date of termination which shall be paid on the tenth business day
following the effective date of such termination; and (iii) the payment by
the Company of premiums on behalf of the Executive, for coverage substantially
similar to that provided under the Company’s health, disability and group term
life insurance plans, at the same cost to the Executive as was effective
immediately prior to termination, and for so long as the Executive elects to
continue such coverage up to a 12 month period. To the extent that
substantially similar health and welfare benefits become available to the
Executive from a subsequent employer, the Company will set off against the
benefits payable hereunder any benefits received by the Executive from any
other source. The Executive agrees to notify the Company within 30 days after
substantially similar health and welfare benefits become available to her from
a subsequent employer.


 


g.                                 In the event of
any termination of the Executive other than by the Executive for Good Reason or
by the Company without Cause, participation by the Executive in all
compensation and benefit plans of the Company will cease upon the effective
termination date and all unvested bonuses, equity awards and other like items
will immediately lapse. In the event of any termination of the Executive, all
amounts owed by the Executive to the Company for any reasons whatsoever will
become immediately due and payable and the Company will transfer to the
Executive any term life insurance policy maintained by the Company for the
Executive’s benefit.


 


14.                                 Termination After Change in Control. If within 24
months following a Change in Control, as defined below, the employment of the
Executive is terminated by the Company without Cause or by the Executive for
Good Reason then the provisions of Section 13 shall not apply and the
following shall occur:


 


a.                                       Subject to subsection h. of Section 20,
on the tenth business day following the effective date of such termination, the
Executive shall receive the following: (i) a lump sum payment equal to two
(2) times the sum of (A) the Executive’s Base Salary in effect
immediately prior to the change in control, plus (B) the average of the
Executive’s actual bonus attributable to each of the preceding three (3) fiscal
years; and (ii) an amount paid in one lump sum equal to the Executive’s
prorated bonus for the then current fiscal year based on actual performance
prior to the date of termination.


 


b.                                      The Company shall pay premiums
on behalf of the Executive, for coverage substantially similar to that provided
under the Company’s health, disability and group term life insurance plans, at
the same cost to the Executive as was effective immediately prior to
termination, and for so long as the Executive elects to continue such coverage
up to a 24


 


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month period. To the extent that substantially similar health and
welfare benefits become available to the Executive from a subsequent employer,
the Company will set off against the benefits payable hereunder any benefits
received by the Executive from any other source.


 


c.                                       Any unvested stock options,
stock appreciation rights, and other equity-based awards held by the Executive
will vest as of the day immediately preceding the effective date of
termination, all unvested Restricted Share awards held by the Executive will
vest as of the day immediately preceding the effective date of termination and
all restrictions will immediately be removed and deemed to have been satisfied,
and any stock options or stock appreciation rights held by the Executive shall
remain exercisable until the earlier of 24 months after the date of termination
or their original expiration date.


 


d.                                      The Executive shall be bound
by the nonsolicitation provisions of Section 11, which shall remain in
full force and effect for a period of 24 months following the effective date of
Executive’s termination.


 


15.                                 Definition of Change in Control. A “Change in Control” shall
be deemed to have occurred if: 


 


a.                                       any “person,”
as such term is used in Sections 13(d) and 14(d) of 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 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 40% or more
of the combined voting power of the Company’s then outstanding securities; or


 


b.                                      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 subsections a., c. or d. of this Section 15 whose election by
the Board or nomination for election by the Company’s stockholders was approved
by a vote of at least two-thirds ( 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 at least a majority thereof; or


 


c.                                       the
consummation of 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


 


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consolidation
or (B) a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no person acquires more than
50% of the combined voting power of the Company’s then outstanding securities;
or


 


d.                                      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 of the Company’s assets;


 


provided,
that with respect to any non-qualified deferred compensation that becomes
payable on account of the Change in Control, the transaction or event described
in subsection a., b., c. or d. also constitutes a “change in control event,” as
defined in Treasury Regulation §1.409A-3(i)(5) if required in order for
the payment not to violate Section 409A of the Code..


 


16.                                 Parachute Payment Matters.


 


Notwithstanding any other provision of this Agreement, if by reason of Section 280G
of the Code any payment or benefit received or to be received by the Executive
in connection with a Change in Control or the termination of the Executive’s
employment (whether payable pursuant to the terms of this Agreement (“Contract
Payments”) or any other plan, arrangements or agreement with the Company or an
Affiliate (as defined below) (collectively with the Contract Payments, “Total
Payments”)) would not be deductible (in whole or part) by the Company, an
Affiliate or other person making such payment or providing such benefit, then
the Contract Payments shall be reduced and, if Contract Payments are reduced to
zero, other Total Payments shall be reduced until no portion of the Total
Payments is not deductible by reason of Section 280G of the Code, provided,
however, that no such reduction shall be made unless the net after-tax benefit
received by the Executive after such reduction would exceed the net after-tax
benefit received by the Executive if no such reduction was made. The foregoing
determination and all determinations under this Section 16 shall be made
by the Accountants (as defined below). For purposes of this
section, “net after-tax benefit” shall mean (i) the Total Payments that
would constitute “parachute payments” within the meaning of Section 280G
of the Code, less (ii) the amount of all federal, state and local income
taxes payable with respect to such payments calculated at the maximum marginal
income tax rate for each year in which the foregoing shall be paid to the
Executive (based on the rate in effect for such year as set forth in the Code
as in effect at the time of the first payment of the foregoing), less (iii) the
amount of excise taxes imposed with respect to the payments and benefits
described in (i) above by Section 4999 of the Code. For purposes of
the foregoing determinations, (a) no portion of the Total Payments the
receipt or enjoyment of which the Executive shall have effectively waived in
writing prior to the date of payment of any Contract Payment shall be taken
into account; (b) no portion of the Total Payments shall be taken into
account which in the opinion of the Accountants does not constitute a
“parachute payment” within the meaning of Section 280G(b)(2) of the
Code (without regard to subsection (A)(ii) thereof); (c) the Contract
Payments (and, thereafter, other Total Payments) shall be reduced only to the
extent necessary so that the Total Payments in their entirety constitute
reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of
the Code, in the opinion of the Accountants; and (d) the value of any
non-cash benefit or any deferred payment or benefit included in the Total
Payments shall be determined by the Accountants in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code. For purposes
of this Section 16, the term


 


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“Affiliate”
means the Company’s successors, any Person whose actions result in a Change in
Control or any company affiliated (or which, as a result of the completion of
the transactions causing a Change in Control shall become affiliated) with the
Company within the meaning of Section 1504 of the Code and “Accountants”
shall mean the Company’s independent certified public accountants serving
immediately prior to the Change in Control, unless the Accountants are also
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, in which case the Company shall appoint another
nationally recognized public accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accountants hereunder). For purposes of making the determinations and
calculations required herein, the Accountants may make reasonable assumptions
and approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999 of
the Code, provided that the Accountant’s determinations must be made on the
basis of “substantial authority” (within the meaning of Section 6662 of
the Code). All fees and expenses of the Accountants shall be borne solely by
the Company.


 


17.                                 Arbitration of Disputes.


 


a.                                       Any dispute or claim arising
out of or relating to this Agreement or any termination of the Executive’s
employment, other than with respect to Sections 8 through 12, shall be settled
by final and binding arbitration in the greater Los Angeles metropolitan area
in accordance with the Commercial Arbitration rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.


 


b.                                      Except as provided by
applicable law, the fees and expenses of the arbitration panel shall be shared
equally by the Executive and the Company.


 


c.                                       Except as provided by
applicable law, the prevailing party in any arbitration brought hereunder shall
be entitled to an award of its costs (including expenses and attorneys’ fees),
incurred in such arbitration.


 


18.                                 No Mitigation. The Executive
shall have no duty to attempt to mitigate the level of benefits payable by the
Company to the Executive hereunder, by seeking other employment or otherwise.
To the extent that substantially similar health and welfare benefits become
available to the Executive from a subsequent employer, the Company will
discontinue the Executive’s coverage; otherwise, the Company shall not be
entitled to set off against the amounts payable hereunder any amounts received
by the Executive from any other source, including any subsequent employer.


 


19.                                 Notices. Any notices to be given
hereunder by either party to the other may be effected either by personal
delivery in writing or by mail, registered or certified, postage prepaid, with
return receipt requested. Mailed notices shall be addressed as follows:


 


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a.                                  If to the
Company:


 


DineEquity, Inc.


450 N. Brand Boulevard


Glendale, CA 91410


Attn: General Counsel


 


b.                                      If to the
Executive:


 


Ms. Jean M. Birch


1128 King Mark Drive


Lewisville, TX 75056


 


Either
party may change its address for notice by giving notice in accordance with the
terms of this Section 18.


 


20.                                 General Provisions.


 


a.                                       Law Governing. This Agreement
shall be governed by and construed in accordance with the laws of the State of
California.


 


b.                                      Invalid Provisions. If any
provision of this Agreement is held to be illegal, invalid, or unenforceable,
then such provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof; and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance herefrom. Furthermore,
in lieu of such illegal, invalid, or unenforceable provision there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid, or unenforceable provision as may be possible and
still be legal, valid or enforceable.


 


c.                                       Entire Agreement. This Agreement
sets forth the entire understanding of the parties and supersedes all prior
agreements or understandings, whether written or oral, with respect to the
subject matter hereof and all agreements, acknowledgments, designations and
directions of the Executive made or given under any Company policy statement or
benefit program. No terms, conditions, warranties, other than those contained
herein, and no amendments or modifications hereto shall be binding unless made
in writing and signed by the parties hereto.


 


d.                                      Binding Effect. This Agreement
shall extend to and be binding upon and inure to the benefit to the parties
hereto, their respective heirs, representatives, successors and assigns. This
Agreement may not be assigned by the Executive, but may be assigned by the
Company to any person or entity that succeeds to the ownership or operation of
the business in which the Executive is primarily employed by the Company.


 


e.                                       Waiver. The waiver by either party
hereto of a breach of any term or provision of this Agreement shall not operate
or be construed as a waiver of a subsequent


 


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breach of the same provision by any party or of the breach of any other
term or provision of this Agreement.


 


f.                                         Titles. Titles of the
paragraphs herein are used solely for convenience and shall not be used for
interpretation or construing any work, clause, paragraph, or provision of this
Agreement.


 


g.                                      Counterparts.  This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but which together shall constitute one and
the same instrument.


 


h.                                      Compliance with IRC Section 409A.  The following provisions shall apply to this Agreement with respect to Section 409A
of the Code:


 


(i)                                     The lump sum
cash severances payments which are payable under clause (i) of subsection
f. of Section 14 and under subsection a. of Section 14 are intended
to satisfy the short-term deferral exemption under Treasury Regulation Section
1.409A-1(b)(4) and shall be made not later than the last day of the applicable
two and one-half month period with respect to such payment, within the meaning
of Treasury Regulation Section 1.409A-1(b)(4).


 


(ii)                                  If any
provision of this Agreement (or of any award of compensation, including equity
compensation or benefits) would cause Executive to incur any additional tax or
interest under Section 409A of the Code or any regulations or Treasury
guidance promulgated thereunder, the Company shall, after consulting with
Executive, reform such provision to comply with Section 409A of the Code,
provided that the Company agrees to maintain, to the maximum extent
practicable, the original intent and economic benefit Executive of the
applicable provision without violating the provisions of Section 409A of
the Code.


 


(iii)                          Notwithstanding
any provision to the contrary in this subsection h., if Executive is deemed on
the Termination Date to be a “specified employee” within the meaning of that
term under Section 409A(a)(2)(B) of the Code, then with regard to any
payment or the provision of any benefit that is required to be delayed in
compliance with section 409A(a)(2)(B) of the Code such payment or benefit
shall not be made or provided (subject to the last sentence hereof) prior to
the earlier of (A) the expiration of the six (6)-month period measured from
the date of the Executive’s “separation from service” (as such term is defined
under Section 409A of the Code) or (B) the date of the Executive’s
death (the “Delay Period”). Upon the expiration of the Delay Period, all
payments and benefits delayed pursuant to this section (whether they would have
otherwise been payable in a single sum or in installments in the absence of
such delay) shall be paid or reimbursed Executive in a lump sum, and any
remaining payments and benefits due under this Agreement shall be paid or
provided in accordance with the normal payment dates specified for them herein.
Notwithstanding the foregoing, to the extent that the foregoing applies to the
provision of any ongoing welfare benefits to Executive that would not be
required to be delayed if the premiums therefore were paid by Executive,
Executive shall pay the full cost of premiums for such welfare benefits during
the Delay Period and the Company shall pay Executive an amount equal to the
amount of such premiums paid by Executive during the Delay Period promptly
after its conclusion.


 


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IN WITNESS WHEREOF, the Company and
the Executive have executed this Agreement as of the date and year first above
written.


 


THIS AGREEMENT CONTAINS AN
ARBITRATION CLAUSE.


 


 


	
  EXECUTIVE:

  	
   

  	
  DineEquity, Inc.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Jean M. Birch

  	
   

  	
  By: 

  	
  /s/ Julia A. Stewart

  
	
  Jean M. Birch

  	
   

  	
   

  	
  Julia A. Stewart, CEO

  



 


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Exhibit A
— Executive’s Authorities and Duties


 


During
the Employment Period, the Executive shall serve as President, IHOP Business
Unit, reporting directly to the DineEquity, Inc. CEO, with duties,
authorities and responsibilities commensurate with such title and office.


 


 


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