EXHIBIT 10.31
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of January 1,
1995, between The Multicare Companies, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxx (the "Executive").
The Company desires to employ the Executive, and the Executive
desires to accept such employm ent, on the term and conditions of this
Agreement.
Certain terms used herein are defined in Section 11.1.
NOW, THEREFORE, in consideration of the agreements and obligations
herein contained, the Company and the Executive hereby agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 Employment by the Company. The Company agrees to employ
the Executive for the Term (as defined in Section 2), to render full-time
services to the Company as its Chairman of the Board and Co-Chief Executive
Officer and to perform such duties commensurate with such office as the Board
of Directors of the Company (the "Board of Directors") shall reasonably
direct.
1.2 Acceptance of Employment by the Executive. The Executive
hereby accepts such employment and agrees to render the services described
above. The Executive further agrees to accept election and to serve during
all or any part of the Term as a director of the Company and as an officer or
director of any subsidiary of the Company, without any compensation therefor
other than as specified in this Agreement, if elected to any such position.
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The Company will use its best efforts to cause the Executive to be elected as
a member of the Board of Directors and shall include him, during the Term, in
the management slate for election as a director at every stockholders meeting
at which his term as a director would otherwise expire.
2. TERM OF EMPLOYMENT.
2.1 The term of the Executive's employment under this
Agreement (the "Term") shall commence on the date hereof and shall end on
December 31, 1999, unless earlier terminated pursuant to Section 4 hereof;
provided, that the Term shall automatically be extended for successive one-
year periods on each January 1, commencing January 1, 2000 unless timely
written notice of termination of the Term is provided in accordance with
Section 2.2. Each one-year period commencing each January 1 during the Term
is referred to herein as an "Employment Year".
2.2 The Company or the Executive may choose not to extend or
renew the Term of Executive's employment hereunder without cause or reason,
upon written notice to the other at least one hundred eighty (180) days prior
to any January 1 occurring after January 1, 1998.
3. COMPENSATION AND OTHER BENEFITS.
3.1 Salary. As compensation for services to be rendered
pursuant to this Agreement, the Company agrees to pay the Executive, for
each Employment Year during the Term, an annual direct salary of $600,000 per
year (the "Annual Direct Salary"). The Annual Direct Salary shall be
reviewed by the Board of Directors on each anniversary of this Agreement and
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shall be adjusted upwards as of each such anniversary. In no event shall
the Annual Direct Salary be decreased from the Annual Direct Salary payable
for the immediately preceding year without the express written consent of the
Executive.
3.2 Incentive Compensation. The Executive shall prepare a
business plan establishing the financial and business goals of the Company
prior to the start of each fiscal year during the Term (the "Business Plan").
The Business Plan prepared by the Executive shall be reviewed promptly by the
Board of Directors, which may negotiate goals and performance expectations
with the Executive prior to adoption. Upon adoption of the Business Plan,
the Board of Directors shall establish an incentive compensation opportunity
for the Executive under the Company's Key Employee Incentive Compensation
Plan (the "KEICP"). The Executive's KEICP opportunity shall provide an
incentive pay opportunity consistent with the practices of similar
organizations in rewarding their senior executives and shall be consistent
with past practice. For 1995, the Executive's incentive for achieving
Expected Performance under the KEICP shall be 100% of the Executive's Annual
Direct Salary in effect on January 1, 1995; Threshold Performance shall be
70% of such Annual Direct Salary; and Outstanding Performance shall be 150%
of such Annual Direct Salary. Any incentive award earned by the Executive
pursuant to the KEICP shall be paid to the Executive during the month of
December in the applicable fiscal year.
3.3 Employee Benefit Plans. The Executive shall be entitled
to participate in or receive benefits under all Company employment benefit
plans including, but not limited to, any pension, profit-sharing plan, stock
option or other equity award or participation plans, savings plan,
supplemental retirement income, medical or health-and-accident plan or
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arrangement made available by the Company to its executives and key
management employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements. The
Company shall also provide the Executive with the following minimum benefits:
(i) Life Insurance: the Company shall acquire
and maintain for the Executive a supplemental term life insurance policy with
a death benefit equal to at least five (5) times the Executive's then current
Annual Direct Salary to a maximum death benefit of $5,000,000. The
Executive, or a valid trust established by the Executive, shall own such
policy and the Executive shall be liable for any income taxes due annually on
the reported income resulting from the Company's payment of annual premiums
during the Term. In addition, the Company shall acquire and maintain for
Executive a term life insurance policy with a death benefit equal to $50
million to fund Executive's obligations under the Buy-Sell Agreement between
the Executive and Xxxxxx X. Xxxxxx. Both of these policies shall be, and
shall provide that they are, assumable by Executive at the termination or
expiration of the Term. The Executive is permitted to be, and has the right
to name, the beneficiary under any of the foregoing policies. The Company
shall indemnify and hold the Executive harmless from and against any federal,
state or local income tax imposed on the Executive as a result of the
provision by the Company of the policies set forth in this Section. For the
purpose of determining the amount of any payment under the preceding
sentence, the Executive shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation applicable to individuals in
the calendar year in which such indemnity payment is to be made, and state
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and local income taxes at the highest marginal rates of taxation applicable
to individuals as are in effect in the jurisdiction in which the Executive is
resident, net of the maximum reduction in federal income taxes that can be
obtained from deduction of such state and local taxes.
(ii) Disability Insurance: In the event that
the Company's group long-term disability insurance policy benefit limit, if
any, does not permit the Executive to receive the 66.67% of income
replacement at the time of disability, or the Company does not at any time
during the Term maintain a group long-term disability insurance policy, the
Company shall make available a long-term disability insurance policy for the
Executive, which policy shall provide that in the event the Executive is
unable to perform his duties hereunder as a result of incapacity due to
physical or mental illness, he shall be entitled to receive benefits from all
sources (Social Security, group long-term disability and supplemental long-
term disability) equal to 66.67% of his then current Annual Direct Salary
until the Executive reaches the age of 65 or dies. The Company shall
continue to pay to the Executive his Annual Direct Salary during any
applicable elimination or waiting period not in excess of one hundred eighty
(180) days.
(iii) 401(k) Wrap Plan/Deferred Compensation
Plan Participation: The Executive shall have the option to participate in a
401(k) Wrap Plan to be established by the Company to enable the Executive to
defer portions of current income from income tax liability until a later
time, provided such election to defer income is made in compliance with the
Code.
3.4 Vacation. During the Term, the Executive shall be
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entitled to the number of paid vacation days in each calendar year determined
by the Company from time to time for its senior executive officers, but not
less than six (6) weeks in any calendar year. The Executive shall also be
entitled to all paid holidays given by the Company to its senior executive
officers and all holidays observed in the Jewish religion.
3.5 Reimbursement of Expenses. During the Term, the Company
shall reimburse the Executive promptly for all reasonable expenses incurred
by him (in accordance with the policies and procedures established by the
Board of Directors for the Company's senior executive officers) in performing
services hereunder.
3.6 Automobile Allowance. During the Term, the Executive
shall be entitled to use for business and personal reasons an automobile of
his choice leased by the Company. The Company shall pay all amounts in
respect of premiums for liability insurance (in amounts determined by the
Executive) and will reimburse the Executive for all operating, maintenance
and repair expenses.
3.7 Agreement Signing Incentive. The Executive shall receive
as of the date hereof a special one-time grant pursuant to the Company's
Stock Option Plan of 37,500 nonqualified options to purchase shares of the
Company's common stock (the "Options"). The Options shall have an exercise
price equal to the closing bid price of the Company's common stock on the
date of hereof as reported by The NASDAQ Stock Market and shall vest ratably
over five years.
3.8 Other Benefits. The Executive shall be entitled to
receive such other requisites, e.g. club memberships and fringe benefits as
the Board of Directors deems appropriate.
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4. TERMINATION.
4.1 Termination Upon Death. If the Executive dies during the
Term, this Agreement shall terminate as of the date of death, and the
Executive's legal representatives, successors, heirs or assigns shall be
entitled to receive the amounts set forth in Section 6.1.
4.2 Termination Upon Disability. If during the Term, the
Executive becomes subject to a Disability (as defined in the following
sentence), the Company may at any time thereafter, by notice to the
Executive, terminate the Term of Executive's employment hereunder, except
that the Executive shall be entitled to receive the amounts specified in
Section 6.1. For purposes of this Agreement, the term "Disability" shall
mean incapacity due to physical or mental illness which has caused the
Executive to be unable to substantially perform his duties with the Company
on a full time basis for (i) a period of one hundred eighty (180) consecutive
days or (ii) for shorter periods aggregating two hundred seventy (270) days
in any three hundred sixty-five (365) day period. During any period of
Disability, the Executive agrees to submit to reasonable medical examinations
upon the request, and at the expense, of the Company. Nothing in this
Section 4.2 shall be deemed to extend the Term.
4.3 Termination for Cause. During the Term, the Company
shall have the right to terminate the Term of Executive's employment with the
Company for Cause. For purpose hereof, a termination by the Corporation for
"Cause" shall mean termination by action of at least a majority of the
members of the Board of Directors of the Corporation (excluding Executive) at
a meeting duly called and held upon at least 15 days' prior written notice to
Executive specifying the particulars of the action or inaction alleged to
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constitute "Cause" (and at which meeting Executive and his counsel were
entitled to be present and given reasonable opportunity to be heard) because
of (i) Executive's conviction of any felony (whether or not involving the
Company or any of its subsidiaries) involving moral turpitude which subjects,
or if generally known, would subject, the Company or any of its subsidiaries
to public ridicule or embarrassment, (ii) fraud or other willful misconduct
by Executive in respect of his obligations under this Agreement, or (iii)
willful refusal or continuing failure to attempt, without proper cause and,
other than by reason of illness, to follow the lawful directions of the Board
of Directors, following thirty days' prior written notice to Executive of his
refusal to perform, or failure to attempt to perform such duties, and which
during such thirty day period such refusal or failure to attempt is not cured
by the Executive. "Cause" shall not include a bona fide disagreement over a
corporate policy, so long as Executive does not willfully violate on a
continuing basis specific written directions from the Board of Directors,
which directions are consistent with the provisions of this Agreement.
Action or inaction by Executive shall not be considered "willful" unless done
or omitted by him intentionally or not in good faith and without his
reasonable belief that his action or inaction was in the best interests of
the Company, and shall not include failure to act by reason of total or
partial incapacity due to physical or mental illness.
5. TERMINATION BY THE EXECUTIVE.
The Executive may terminate the Term on written notice to the
Company upon the continuation of any of the following events for more than
ten (10) days after Executive delivers notice to the Company thereof (other
than with respect to paragraph (vi), which shall be governed by Section 7
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hereof) and the occurrence of any one or more of the following (each "Good
Reason"):
(i) Executive shall fail to be re-elected as
the Company's Chairman of the Board and Co-Chief Executive Officer or shall
be removed from such position at any time during the Term;
(ii) Executive shall fail to be vested with the
powers and authority of Chairman of the Board and Co-Chief Executive Officer
of the Company; or the powers and authority of such position or the
Executive's authority and responsibilities hereunder shall be diminished in
any material respect;
(iii)Executive's principal place of employment
is changed without Executive's prior written consent;
(iv) any material failure by the Company to
comply with any of the provisions of this Agreement including, without
limitation, failure to make any payment required to be made by the Company
pursuant to this Agreement within five (5) business days after the date such
payment is required to be made;
(v) any purported termination by the Company
of Executive's employment otherwise than as expressly permitted by this
Agreement;
(vi) upon a Change of Control (as defined in
Section 7); or
(vii)the commencement of a proceeding or case,
with or without the application or consent of the Company or any of its
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subsidiaries, in any court or competent jurisdiction, seeking (A) the
liquidation, reorganization, dissolution or winding-up of the Company or its
subsidiaries, or the composition or readjustment of the debts of the Company
or its subsidiaries, (B) the appointment of a trustee, receiver, custodian,
liquidator or the like for the Company or its subsidiaries or of all or any
substantial part of their respective assets, or (C) any similar relief in
respect of the Company or its subsidiaries under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts.
6. PAYMENTS UPON TERMINATION.
6.1 Termination Due to Death or Disability. Upon the death
or Disability of the Executive (A) the Company shall pay to the Executive or
his estate (i) the Annual Direct Salary and other accrued benefits earned up
to the last day of the month of the Executive's death or Disability (subject
to the last sentence of Section 3.3(ii)), (ii) all deferred amounts earned
under the KEICP or similar bonus plan, and (iii) if any bonus, under the
KEICP or otherwise, shall be payable in respect of the year in which the
Executive's death or Disability occurs, such bonus(es) prorated up to the
last day of the month of the Executive's death or Disability and (B) all
restricted stock, stock option and performance share awards made to the
Executive shall automatically become fully vested as of the date of death or
Disability.
6.2 Termination for Cause. Upon termination of the Term by
the Company for Cause, the Company's obligations to the Executive under this
Agreement shall be limited to the payment of unpaid Annual Direct Salary and
benefits accrued up to the effective date of termination specified in the
Company's notice of termination.
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6.3 Termination by Executive for Good Reason or by the
Company other than for Certain Reasons.
a) In the event (i) the Company terminates the
Term for a reason other than for (A) Cause or (B) due to death or Disability
or (C) upon a Change of Control or (D) gives notice of non-renewal pursuant
to Section 2 or (ii) the Executive terminates the Term for Good Reason, then:
(1) the Company shall pay the Executive (A) (i) the Annual Direct Salary and
other accrued benefits earned up to the last day of the month of the
Executive's employment, (ii) all deferred amounts earned under the KEICP or
similar bonus plan and (iii) if any bonus, under the KEICP or otherwise,
shall be payable in respect of the year in which the Term is terminated, such
bonus(es) prorated up to the last day of the month of such termination and
(B) a lump sum cash payment within thirty (30) days following the date of
termination (except for termination by notice of non-renewal, in which case
such payment shall be made within thirty (30) days following the expiration
of the Term) equal to the greater of (x) all remaining Annual Direct Salary
payable during the Term and (y) an amount equal to two times the Annual
Direct Salary for the then current Employment Year and (2) all stock options,
stock awards and similar equity rights, if any, shall vest and become
exercisable immediately prior to the termination of the Term and remain
exercisable through their original terms with all rights.
(b) Following termination of the Term for any
reason, other than for Cause or upon the death of the Executive, the Company
shall also maintain in full force and effect, for the continued benefit of
the Executive for a period equal to the greater of (x) the period of the Term
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otherwise remaining or (y) two (2) years without giving effect to such
termination, all employee benefit plans and programs to which the Executive
was entitled prior to the date of termination (including, without limitation,
the benefit plans and programs provided for herein) if the Executive's
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that the Executive's participation in
any such plan or program is barred by the terms thereof, the Company shall
pay to the Executive an amount equal to the annual contribution, payments,
credits or allocations made by the Company to him, to his account or on his
behalf under such plans and programs from which his continued participation
is barred except that if the Executive's participation in any health,
medical, life insurance or disability plan or program is barred, the Company
shall obtain and pay for, on the Executive's behalf, individual insurance
plans, policies or programs which provide to the Executive health, medical,
life and disability insurance coverage which is equivalent to the insurance
coverage to which the Executive was entitled prior to the date of
termination.
6.5 Termination Due to a Change of Control. Upon the
termination of the Term due to a Change of Control, the Company shall pay the
amounts to and provide the benefits for the Executive as set forth in Section
7.1 and 7.4 hereof.
7. CHANGE OF CONTROL.
7.1 (a) Upon a Change of Control, the Executive may
terminate the Term upon notice to the Company, effective as set forth in such
notice (i) for any reason or for no reason during the initial ninety (90) day
period following the date of such Change of Control or (ii) at any time, in
the event that within twenty-four (24) months following the date of a Change
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of Control, the continuation of any event constituting Good Reason hereunder
for more than ten (10) days after the Executive delivers notice thereof to
the Company (other than as contemplated by Section 5(vi)) occurs. In the
event that the Executive terminates the Term pursuant to this Section 7.1,
the Company shall make a lump-sum payment to the Executive equal to three
times the sum of (i) his then current Annual Direct Salary and (iii) an
amount equal to the highest annual bonus (KEICP and other amounts being
aggregated) award received within the three (3) years immediately preceding
the Employment Year in which such termination occurs; provided, that in no
event shall such amount be less than the bonus payable at an Expected Level
of performance under the KEICP for 1995. The Company shall also maintain the
benefit coverages for the Executive specified in Section 6.3 above for a
period of twenty-four (24) months following the date of termination of the
term by the Executive.
(b) Upon (i) the execution of a definitive
agreement (including, without limitation, any "lock-up" agreement with any of
the Company's principal stockholders) which contemplates a transaction, or
(ii) the commencement of any tender or exchange offer or similar transaction
for or involving the Company's securities, which, in the case of any
transaction of the type described by clause (i) or (ii), if consummated,
could result in a Change in Control, all restricted stock, stock option and
performance share awards made to the Executive shall become automatically
fully vested in order to provide the Executive with a reasonable time period
to enable the Executive to obtain the economic benefit of the contemplated
transaction with respect to all restricted stock, stock option and
performance share awards then held by him. In the event the Executive does
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not exercise any such accelerated restricted stock, stock options or awards
in the transaction resulting in a Change of Control, the Executive will have
a six month period from the date of a Change of Control in which to exercise
such restricted stock, stock options and awards. In the event the
transaction contemplated by the definitive agreement referred to above is not
consummated and such definitive agreement is terminated, all accelerated
restricted stock, stock options and awards shall be deemed restored to the
vesting schedules in effect at the time of execution of such definitive
agreement.
(c) Upon the termination of the Term upon a Change
of Control, the Company shall provide to the Executive outplacement and
career counseling services as may be requested by the Executive; such service
costs not to exceed 15% of the Executive's then-current Annual Direct Salary.
7.2 For purposes of this Agreement, the term "Change of
Control" shall mean:
(a) the acquisition (after the date hereof) of the
beneficial ownership of a majority of the Company's voting securities and/or
substantially all of the assets of the Company by a single person or entity
or a group of affiliated persons or entities, or
(b) the merger, consolidation or combination or
similar transaction of the Company with an unaffiliated corporation in which
the Board of Directors immediately prior to such merger, consolidation or
combination constitute less than a majority of the board of directors of the
surviving, new or combined entity.
7.3 For purposes of this Agreement the term a "date of a
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Change of Control" shall mean:
(a) the first date (after the date hereof) on which
a single person and/or entity, or group of affiliated persons and/or
entities, acquire the beneficial ownership of majority of the Company's
voting securities; or
(b) the date of the transfer of all or
substantially all of the Company's voting securities; or
(c) the date on which a merger, consolidation or
combination of the type specified in Section 7.2(b) is consummated.
7.4 Certain Taxes. The Company shall indemnify and hold the
Executive harmless from and against (i) the imposition of excise tax (the
"Excise Tax") under Section 4999 of the Code, on any payment made under this
Agreement (including any payment made under this paragraph) and any interest,
penalties and additions to tax imposed in connection therewith, and (ii) any
federal, state or local income tax imposed on any payment made pursuant to
this paragraph. The Executive shall not take the position on any tax return
or other filing that any payment made under this Agreement is subject to the
Excise Tax, unless, in the opinion of independent tax counsel reasonably
acceptable to the Company, there is not reasonable basis for taking the
position that any such payment is not subject to the Excise Tax under U.S.
tax law then in effect. If the Internal Revenue Service makes a claim that
any payment or portion thereof is subject to the Excise Tax, at the Company's
election, and the Company's direction and expense, the Executive shall
contest such claim; provided, however, that the Company shall advance to the
Executive the costs and expenses of such contest, as incurred. For the
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purpose of determining the amount of any payment under clause (ii) of the
first sentence of this paragraph, the Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation
applicable to individuals in the calendar year in which such indemnity
payment is to be made and state and local income taxes at the highest
marginal rates of taxation applicable to individuals as are in effect in the
jurisdiction in which the Executive is resident, net of the maximum reduction
in federal income taxes that could be obtained from deduction of such state
and local taxes.
7.5 Severance Letter of Credit. The Company shall, at all
times during the Term and any extensions and renewals thereof and for thirty
(30) days thereafter, at such time the Executive may direct, and cause to be
maintained in effect a letter of credit for the benefit of the Executive,
from a bank reasonably satisfactory to the Executive in a face amount that is
equal to or greater than the amounts payable to the Executive at such time
under Section 7.1 and 7.4. Not later than thirty (30) days prior to the
expiration of any letter of credit furnished pursuant to this Section 7.5,
the Company shall furnish to the Executive a replacement or substitute letter
of credit effective from and after such expiration and expiring not earlier
than one hundred eighty (180) days thereafter or such shorter period as a
letter of credit is required to be maintained under the immediately preceding
sentence.
8. RESTRICTIVE COVENANTS.
8.1 Confidentiality. During the Term and for two (2) years
thereafter, the Executive shall not, without the written consent of the Board
of Directors or a person authorized thereby, knowingly disclose to any
person, other than an employee of the Company or a person to whom disclosure
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is reasonably necessary or appropriate in connection with the performance by
the Executive of his duties as an executive of the Company, any material
confidential information obtained by him while in the employ of the Company
with respect to any of the Company's services, products, improvements,
processes, customers, methods of distribution or any business practices the
disclosure of which he knows will be materially damaging to the Company;
provided, however, that confidential information shall not include any
information publicly available at the time of the alleged disclosure (other
than as a result of unauthorized disclosure by the Executive) or any
information of a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that conducted by the
Company. Upon termination of the Term upon the request of the Company, the
Executive shall promptly deliver to the Corporation all correspondence,
manuals, letters, notes, notebooks, reports and any other documents or
tangible items containing or constituting confidential information about the
business of the Company.
8.2 Injunctive Relief. The Executive agrees that any breach
of the restrictions set forth in this Section 8 will result in irreparable
injury to the Company for which it shall have no meaningful remedy in law and
the Company shall be entitled to injunctive relief in order to enforce the
provisions thereof. In the event that any provision of this Section 8 shall
be determined by any court of competent jurisdiction to be unenforceable in
part by reason of it being too great a period of time or covering too great a
geographical area, it shall be in full force and effect as to that period of
time or geographical area determined to be reasonable by the court.
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9. INDEMNIFICATION.
(a) The Executive shall be provided with directors'
and officers' insurance in connection with his employment hereunder and
service as a director as contemplated hereby with such coverage (including
with respect to unpaid wages and taxes not remitted when due) and in such
amounts as shall be reasonably satisfactory to the Executive, and the Company
shall maintain such insurance in effect for the period of the Executive's
employment hereunder and for not less than five years thereafter; provided,
however, than in the event that the Company shall not obtain such insurance,
it shall provide or cause the Executive to be provided with indemnity (or a
combination of indemnity and directors' and officers' insurance) in
connection with his employment hereunder with such coverage, in such amounts
and from such person or persons as shall be reasonably satisfactory to the
Executive, and the Company shall maintain such indemnity (or combination of
indemnity and directors' and officers' insurance) or cause such indemnity (or
such combination) to be maintained for the period of the Executive's
employment hereunder and not less than five (5) years thereafter.
(b) To the fullest extent permitted or required by
the laws of the State of Delaware, the Company shall indemnify and provide
reasonable advances for expenses to the Executive, in accordance with the
terms of such laws, if the Executive is made a party, or threatened to be
made a party, to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that the Executive is or was an officer or director of the
Company or any subsidiary or the Company, in which capacity the Executive is
or was serving at the Company's request and in furtherance of the Company's
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best interests, against expenses (including reasonable attorneys fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding.
10. NO DUTY TO MITIGATE. The Executive shall have no duty to
mitigate any severance amount or any other amounts payable to him hereunder
and such amounts shall not be subject to reduction for any compensation
received by the Executive from employment in any capacity or other source
following the termination of the Executive's employment with the Company and
its subsidiaries.
11. OTHER PROVISIONS.
11.1 Certain Definitions. As used herein, the following terms
shall be defined as follows:
"affiliate" of any person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such person. For the purpose of this definition, "control" when
used with respect to any person means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the term
"controlling" and "controlled" have meanings correlative to the foregoing.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"person" means individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a governmental entity or any department or agency thereof.
11.2 Notices. Any notice or other communication required or
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permitted hereunder shall be in writing and shall be delivered personally,
telecopied or sent by certified, registered or express mail, postage prepaid.
Any such notice shall be deemed given when so delivered personally,
telecopied or sent by express mail, or if sent by certified or registered
mail, five days after the date of deposit in the United States mail, as
follows:
(i) if to the Company, to:
The Multicare Companies, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
telephone: (000)000-0000
Telecopy: (000)000-0000
with a copy to:
Xxxx Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone: (000)000-0000
Telecopy: (000)000-0000
(ii) if to the Executive, to him at his address
then reflected in the personnel records of the Company.
Either party may change its or his address for notice hereunder by
notice to the other party in accordance with this Section 11.2.
11.3 Waivers and Amendments. This Agreement may be amended,
modified, superseded or cancelled, and the terms and conditions hereof may be
waived, only by a written instrument signed by the parties or, in the case of
a waiver, by the party waiving compliance. No delay on the part of any party
in exercising any right or remedy hereunder shall operate as a waiver
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thereof, nor shall any waiver on the part of any party of any such right or
remedy, nor any single or partial exercise of any such right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy.
11.4 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New Jersey applicable
to agreements made and to be performed entirely within such State.
11.5 Assignability and Binding Effect. This Agreement shall
inure to the benefit of and shall be binding upon the Company and its
successors and permitted assigns and upon Executive and his heirs, executors,
legal representatives, successors and permitted assigns. However, neither
party may assign, transfer, pledge, encumber, hypothecate or otherwise
dispose of this Agreement or any of its or his rights hereunder without prior
written consent of the other party, and any such attempted assignment,
transfer, pledge, encumbrance, hypothecation or other disposition without
such consent shall be null and void and without effect.
11.6 Enforcement of Separate Provisions. Should any provision
or provisions of this Agreement be determined to be unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
11.7 Arbitration. In the event that any disagreement or
dispute shall arise between the parties concerning this Agreement, the
issue(s) will be submitted to JAMS/Endispute, Inc. for binding arbitration.
Any award entered shall be final and binding upon the parties hereto and
judgment upon the award may be entered in any court having jurisdiction
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thereof. All fees of attorneys, accountants, advisors or other experts or
witnesses, together with all administrative costs incurred in connection with
such actions, shall be paid by the Company.
11.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but both of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed or caused the
execution of this Agreement as of the date first above written.
THE MULTICARE COMPANIES, INC.
By: /S/ XXXXXX X. XXXXXX
_____________________________
Name: XXXXXX X. XXXXXX
Title: PRESIDENT AND CO-CHIEF EXECUTIVE OFFICER
/S/ XXXXXXX X. XXXXXX
_____________________________
Xxxxxxx X. Xxxxxx
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