EMPLOYMENT AGREEMENT
Exhibit
10.17
EMPLOYMENT AGREEMENT dated as of July 1, 2003 by and between TANDEM HEALTH CARE, INC., a
Pennsylvania corporation (the “Company”), and Xxxxxxxx X. Xxxxxxxx (the “Employee”).
WITNESSETH:
WHEREAS the Company desires to induce the Employee to continue employment with the Company for
the period provided in this Agreement, and the Employee is willing to accept such continued
employment with the Company on a full-time basis, all in accordance with the terms and conditions
set forth below:
NOW, THEREFORE, for and in consideration of the promises hereof and the mutual covenants
contained herein, the parties hereto hereby covenant and agree as
follows:
1.
Employment. (a) The Company hereby agrees to employ the Employee,
and the Employee hereby agrees to accept such employment with the Company, for an additional
five (5) year period beginning on July 1, 2003 and continuing for the period set forth in
Section 2 hereof, all upon the terms and conditions hereinafter
set forth.
(b) The Employee affirms and represents that she is under no obligation to any
former employer or other party which is in any way inconsistent with, or which imposes any
restriction upon, the Employee’s acceptance of employment hereunder with the Company, the
employment of fee Employee by the Company, or the Employee’s undertakings under this
Agreement.
(c) This Agreement shall not preclude Employee from practicing law on a
part-time basis with a law firm, so long as those responsibilities do not conflict with or
interfere with the duties of Employee hereunder.
2.
Term of Employment. (a) Unless earlier terminated as provided in this
Agreement, the term of the Employee’s employment under this Agreement shall be for a period
beginning on July 1, 2003 and ending on June 30, 2008 (the “Initial Term”).
(b) The term of the Employee’s employment under this Agreement shall be automatically
renewed for additional one-year terms (each a “Renewal Term”) upon the expiration of the Initial
Term or any Renewal Term unless the Company or the Employee delivers to the other, at least six
months prior to the expiration of the Initial Term or the then current Renewal Term, as the case
may be, a written notice specifying that the term of the Employee’s employment will not be renewed
at the end of the Initial Term or such Renewal Term, as the case may be. The period from the date
hereof until June 30, 2008 or, in the event that the Employee’s employment hereunder is earlier
terminated as provided herein or renewed as provided in this Section 2(b), such shorter or longer
period, as the case may be, is hereinafter called the “Employment Term.”
3. Duties. The Employee shall be employed as the Vice-President, General
Counsel and Secretary of the Company, shall faithfully and competently perform such duties as
are specified in the By-laws of the Company or such other duties reasonably related to
Employee’s position as the Chief Executive Officer or Board of Directors of the Company shall
from time to time determine. The Employee shall perform her duties principally at the office of
the Company in Pittsburgh, Pennsylvania, with such travel to such other locations from time to
time as necessary or as the Chief Executive Officer or Board of Directors of the Company may
reasonably prescribe. Except as may otherwise be approved in advance by the Board of Directors
of the Company, and except during vacation periods and reasonable periods of absence due to
sickness, personal injury or other disability, the Employee shall devote her full time
throughout the Employment Term to the services required of her hereunder. The Employee shall render her
services exclusively to the Company and its subsidiaries during the Employment Term and shall
use her best efforts, judgment and energy to improve and advance the business and interests of
the Company and its subsidiaries in a manner consistent with the duties of her position.
During the Employment Term, the Employee shall not serve on the board of directors of any corporation
or other entity other than the boards of directors of the Company and such other corporations
or entities approved by the Board of Directors of the Company. Employee’s current list of Board
positions is attached hereto and approved by the Company.
4. Compensation. (a) Salary. The Company shall pay the Employee a base
salary at the annual rate of $ 216,320 (said amount, together with any increases thereto as
may be determined from time to time by the Chief Executive Officer or the Board of Directors of the
Company in its sole discretion, being hereinafter referred to as “Salary”). Any Salary payable
hereunder shall be paid in regular intervals in accordance with the Company’s payroll
practices from time to time in effect.
(b) Bonus. Employee shall receive bonus compensation from the Company in respect
of each fiscal year (or portion thereof) occurring during the Employment Term in amounts equal to
up to 50% of the Employee’s Salary as may be determined by the
Chief Executive Officer or Board of
Directors of the Company in their sole discretion on the basis of performance-based criteria to be
established in good faith from time to time by the Chief Executive Officer or Board of Directors in
their sole discretion.
5. Benefits. During the Employment Term, the Employee shall:
(i) be eligible to participate in employee fringe benefits and pension and/or profit
sharing plans that may be provided by the Company for its senior executive employees in accordance
with the provisions of any such plans, as the same may be in effect from time to time;
(ii) be eligible to participate and to have her “dependents” (as that term may be defined
under the applicable plans of the Company) participate in any medical and health plans or other
employee welfare benefit plans that may be provided by the Company for its senior executive
employees in accordance with the provisions of any such plans, as the same may be in effect from
time to time;
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(iii) be entitled to have the Company pay the insurance premiums for group life insurance
for the Employee providing for not less than
$ 250,000 in death benefits;
$ 250,000 in death benefits;
(iv) be entitled to annual paid vacation in accordance with the Company policy that may be
applicable to senior executive employees from time to time;
(v) be entitled to sick leave, sick pay and disability benefits in accordance with any
Company policy that may be applicable to senior executive employees from time to time;
(vi) be entitled to reimbursement for all reasonable and customary business-related travel
expenses, membership in appropriate professional organizations and such other reasonable and
necessary out-of-pocket business expenses incurred by the Employee in the performance of her duties
hereunder in accordance with the Company’s policies applicable thereto; and
(vii) be entitled as made available by the Board of Directors, to receive nonqualified
stock options pursuant to the terms of the Company’s Stock Option Plan, Stock Option Agreement and
the vesting schedule provided to the Employee by the Company.
6.
Inventions and Confidential Information. The Employee hereby
covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of research, design,
development, production, marketing and servicing with respect to its businesses and that as
part of the Employee’s employment by the Company the Employee may make new contributions and
inventions of value to the Company.
(b) The Employee’s employment hereunder creates a relationship of
confidence and trust between the Employee and the Company with respect to certain,
confidential information pertaining to the business of the Company and its Affiliates (as hereinafter
defined) or pertaining to the business of any client or customer of the Company or its Affiliates which
may be made known to the Employee by the Company or any of its Affiliates or by any client or
customer of the Company or any of its Affiliates or learned by the Employee during the period
of her employment by the Company.
(c) The Company possesses and will continue to possess information that has
been created, discovered or developed by, or otherwise become known to it (including, without
limitation, information created, discovered or developed by, or made known to, the Employee
during the period of her employment or arising out of her employment) or in which property
rights have been or may be assigned or otherwise conveyed to the Company, which information
has commercial value in the business in which the Company is engaged and is treated by the
Company as confidential.
(d) Any and all inventions, products, discoveries, improvements, processes,
marketing and service methods or techniques, formulae, styles, data bases, computer programs
(whether in source code or object code), know-how, strategies and data, whether or not
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patentable or registerable under copyright or similar statutes, made, developed or created by the
Employee (whether at the request or suggestion of the Company, any of its Affiliates, or otherwise,
whether alone or in conjunction with others, and whether during regular hours of work or otherwise)
during the period of his employment by the Company which may pertain to the business, products, or
processes of the Company or any of its Affiliates (collectively, hereinafter referred to as
“Inventions”), shall be the Company’s exclusive property, and the Employee will promptly execute
and/or deliver to an appropriate executive officer of the Company, upon request and without any
additional compensation therefore, all papers, drawings, models, data, documents and other material
pertaining to or in any way relating to any Inventions made, developed or created by him as
aforesaid. For the purposes of this Agreement, the term “Affiliate” or “Affiliates” shall mean any
corporation or other entity (i) which owns the Company in whole or in part, or which controls the
Company directly or indirectly, whether through common control or otherwise, (ii) which is owned by
the Company in whole or in part, or which is controlled, directly or indirectly, by the Company or
(iii) which is under the common control, directly or indirectly, of the Company and any person or
entity.
(e) The Employee will keep confidential and will hold for the Company’s sole
benefit any Invention which is to be the exclusive property of the Company under this Section
6 for which no patent, copyright, trademark or other right or protection is issued.
(f) The Employee also agrees that she will not without the prior written
consent of an appropriate executive officer of the Company (i) use for her benefit or disclose
at any time during her employment by the Company, or thereafter, except to the extent required by
the performance by her of her duties as an employee of the Company, any information obtained
or developed by her while in the employ of the Company with respect to any Inventions or with
respect to any customers, clients, suppliers, products, employees, financial affairs, or
methods of design, distribution, marketing, service, procurement or manufacture of the Company or any of
its Affiliates, or any confidential matter, except information which at the time is generally
known to the public other than as a result of disclosure by her not permitted hereunder, or
(ii) take with her upon leaving the employ of the Company any document or paper relating to any of the
foregoing or any physical property of the Company or any of its Affiliates.
(g) The Employee acknowledges and agrees that a remedy at law for any
breach or threatened breach of the provisions of this Section 6 would be inadequate and,
therefore, agrees that the Company and its Affiliates shall be entitled to injunctive relief
in addition to any other available rights and remedies in case of any such breach or threatened
breach; provided, however, that nothing contained herein shall be construed as
prohibiting the Company or any of its Affiliates from pursuing any other rights and remedies available for any
such breach or threatened breach.
(h) The Employee agrees that upon termination of her employment by the Company for any
reason, the Employee shall forthwith return to the Company all documents and other property in her
possession belonging to the Company or any of its Affiliates.
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(i) Without limiting the generality of Section 10 hereof, the Employee hereby expressly
agrees that the foregoing provisions of this Section 6 shall be binding upon the Employee’s heirs,
successors and legal representatives.
7. Termination. (a) The Employee’s employment hereunder shall be terminated upon
the occurrence of any of the following:
(i) death of the Employee;
(ii) termination of the Employee’s employment hereunder by the Employee for “good
reason,” such termination to take effect immediately upon written notice from the Employee to the
Company;
(iii) termination of the Employee’s employment hereunder by the Employee at any time
(other than for “good reason” pursuant to clause (ii) above) for any reason whatsoever (including,
without limitation, resignation or retirement);
(iv) termination of the Employee’s employment hereunder by the Company because of the
Employee’s inability to perform her duties on account of disability or incapacity for a period of
one hundred eighty (180) or more days, whether or not consecutive, occurring within any period of
twelve (12) consecutive months;
(v) termination of the Employee’s employment hereunder by the Company at any time “for
cause,” such termination to take effect immediately upon written notice from the Company to the
Employee;
(vi) termination of the Employee’s employment by the Company for any reason (except for
clauses (iv) and (v) above) due to a Change of Control (as herein defined) or during a twelve-month
period following a Change of Control; it being understood that the Employee will be deemed to have
been terminated under clause (vi) if the successor entity following a Change of Control (A) causes
any material change in the terms of Employee’s employment as set forth in this Agreement or (B)
reassigns the Employee’s principal place of employment in excess of 25 miles from the principal
place of Employee’s employment;
(vii) termination of the Employee’s employment by the Company if the Company requires
Employee to relocate to the Company’s office in Maitland, Florida and Employee declines; or
(viii) termination of the Employee’s employment hereunder by the Company at any time other
than pursuant to clauses (i), (iv), (v) (vi) or (vii) above.
The following actions, failures or events by or affecting the Employee shall constitute “good
reason” for termination within the meaning of clause (ii) above: (1) a material change in the
nature or scope of the Employee’s title, authority, status, power, function, duties or
responsibilities, or reporting relationships that is adverse to those existing before such change,
or (2) a failure by the Company or any subsidiary or affiliate of the Company to comply with any
material term or provision hereof, which failure is not cured within 30 days after notice of such
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failure is provided by the Employee to the Company. The following actions, failures or events by or
affecting the Employee shall constitute “cause” for termination within the meaning of clause (v)
above: (1) conviction of the Employee of having committed a felony, (2) acts of dishonesty or moral
turpitude by the Employee that are materially detrimental to the Company and/or its affiliates, (3)
intentional acts or omissions by the Employes that in fact materially damage the business of the
Company and/or any affiliate of the Company, (4) gross negligence by the Employee in the
performance of, or willful disregard by the Employee of, her obligations hereunder, or (5) failure
by the Employee to obey the reasonable and lawful directions of the Chief Executive Officer or the
Board of Directors that are consistent with the provisions of this
Agreement.
(b) For purposes of this Agreement “Change of Control” means (1) the sale,
lease or transfer, whether direct or indirect, of all or substantially all of the assets of
the Company and its subsidiaries, taken as a whole, in one transaction or a series of related
transactions, to any person or persons, corporation, or other entity, or (2) the acquisition of beneficial
ownership by any person or persons (other than Xxxxxxx Capital II, L.P. or any of its affiliates),
in a single transaction or a series of related transactions, of voting stock of the Company representing
more than 50% of the voting power of all outstanding shares of such voting stock, whether
by way of merger or consolidation or otherwise, other than by way of a public offering of equity
securities of the Company.
(c) In the event that the Employee’s employment is terminated pursuant to
clause (ii) or clause (vii) of Section 7(a) above, the Company shall pay to the Employee, as
severance pay or liquidated damages or both, an amount equal to the Employee’s current level
of Salary and benefits (excluding vehicle benefit) for a twelve-month period (the “Payment
Period”), and in no event shall the amount paid be less than the amount of Salary and benefits
received during the twelve-month period immediately preceding Employee’s termination. All
amounts required to be paid to the Employee pursuant to this Section 7(b) shall be paid on
such dates and in such increments during the Payment Period as would be the case for payments of
Salary made during the same period.
(d) In the event that the Employee’s employment is terminated pursuant to
clause (vi) of Section 7(a) above, the Company shall pay to the Employee, as severance pay or
liquidated damages or both, an amount equal to the Employee’s current level of Salary and
benefits for a twenty-four-month period (the “Payment Period”), but in no event shall the
amount paid be less than two times the amount of Salary and benefits received during the twelve-month
period immediately preceding Employee’s termination. All amounts required to be paid to the
Employee pursuant to this Section 7(d) shall be paid on such dates and in such increments
during the Payment Period as would be the case for payments of Salary made during the same period.
(e) In the event of a material change in the nature of scope of the Employee’s
title, authority, status, power, function, duties or responsibilities, or reporting
relationships that is adverse to those existing before such change, except in the event that the Employee’s
employment has terminated or the Employee resigns pursuant to clause (vii) of section 7(a),
the Company shall pay to the Employee, as severance pay or liquidated damages or both, an amount
equal to the Employee’s current level of salary and benefits for a twelve month period
(“Payment
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Period”), but in no event shall the amount paid be less than the amount of salary and benefits
received during the twelve month period immediately proceeding the Employee’s termination. All
amounts required to be paid to the Employee pursuant to this section 7(e) shall be paid on such
dates and in such increments during the Payment Period as would be the case for payment of Salary
made during the same period. Furthermore, the Company agrees that during the Payment Period, the
Company agrees to, during the Payment Period, retained Xxxxxxxx Xxxxxxxxx Professional Corporation
as the Company’s primary outside counsel.
(f) Notwithstanding anything to the contrary expressed or implied herein,
neither the Company (nor any of its Affiliates) shall be obligated to make any payments to the
Employee or on his behalf of whatever kind or nature by reason of the Employee’s cessation of
employment (including, without limitation, by reason of termination of the Employee’s
employment by the Company for “cause”), other than (i) such amounts, if any, of her Salary and
bonus as shall have accrued and remained unpaid as of the date of said cessation, (ii) such
other amounts which may be then otherwise payable to the Employee from the Company’s benefits
plans or reimbursement policies, if any, and (iii) as set forth in Section 7(c) (d) or (e)
above.
(g) No interest shall accrue on or be paid with respect to any portion of any
payments hereunder.
8.
Non-Assignability. (a) Neither this Agreement nor any right or interest
hereunder shall be assignable by the Employee, her beneficiaries, or legal representatives
without the Company’s prior written consent provided, however, that nothing in this Section 8(a) shall
preclude the Employee from designating a beneficiary to receive any benefit payable hereunder
upon her death or incapacity. Notwithstanding the foregoing, this Agreement and any right or
interest of the Company hereunder shall not be assignable by the Company to any of its direct
or indirect subsidiaries without the consent of the Employee. The Company shall remain liable
for the payment of all amounts payable to the Employee hereunder should Employee grant her
consent.
(b) Except as required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to exclusion, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void and
of no effect.
9.
Competition. During the Employee’s employment by the Company and,
except as provided in the last undesignated paragraph of this Section 9, during the two-year
period following the termination of the Employee’s employment hereunder for any reason
whatsoever:
(a) the Employee will not make any statement or perform any act intended to advance an
interest of any existing or prospective competitor of the Company or any of its Affiliates that
will or may injure an interest of the Company or any of its Affiliates in its relationship and
dealings with existing or Potential Customers or Clients, or solicit or encourage any other
employee of the Company or any of its Affiliates to do any act that is disloyal to the
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Company or any of its Affiliates or inconsistent with the interest of the Company or any of its
Affiliate’s interests or in violation of any provision of this
Agreement. (For purposes of this
Paragraph 9, the term “Potential Customers or Clients” is defined as those customers or clients who
were contacted within the year preceding Employee’s termination of employment);
(b) the Employee will not make any statement or do any act intended to cause
any existing or Potential Customers or Clients of the Company or any of its Affiliates to make
use of the services or purchase the products of any competitive business in which the
Employee has or expects to acquire a proprietary interest or in which the Employee is or expects to be
made an employee, officer or director, if such services or products in any way compete with the
services or products sold or provided or expected to be sold or provided by the Company or any
of its Affiliates to any existing or potential customer or client;
(c) the Employee will not directly or indirectly solicit for employment, or
advise or recommend to any other person that they employ or solicit for employment, any
employee of the Company or any of its Affiliates. (Except Xxxxx Xxxx)
For purposes of this Section 9, a person or entity (including, without limitation, the
Employee) shall be deemed to be a competitor of the Company or any of its Affiliates, or a person
or entity (including, without limitation, the Employee) shall be deemed to be engaging in
competition with the Company or any of its Affiliates, only if such person or entity in any way
conducts, operates, carries out or engages in (i) the business of providing post-acute care
services or (ii) such other business or businesses as the Company may in the future conduct in such
geographical area or areas as such business or businesses are conducted by the Company.
The Company acknowledges that this Section 9 shall not be deemed to prohibit the Employee from
owning not more than 5% of the total issued and outstanding stock of a corporation as long as such
entities are not otherwise deemed to be competitors of the Company or any of its Affiliates as
provided in this Section 9.
In connection with the foregoing provisions of this Section 9, the Employee represents that
her experience, capabilities and circumstances are such that such provisions will not prevent her
from earning a livelihood. The Employee further agrees that the limitations set forth in this
Section 9 (including, without limitation, any time or territorial limitations) are reasonable and
properly required for the adequate protection of the businesses of the Company and its Affiliates.
It is understood and agreed that the covenants made by the Employee in this Section 9 (and in
Section 6 hereof) shall survive the expiration or termination of
this Agreement.
For purposes of this Section 9, proprietary interest in a business is ownership, whether
through direct or indirect stock holdings or otherwise, of one percent (1%) or more of such
business.
The
Employee acknowledges and agrees that a remedy at law for any breach or threatened breach
of the provisions of this Section 9 would be inadequate and, therefore, agrees that the Company and
any of its Affiliates shall be entitled to injunctive relief in addition to any other available
rights and remedies in cases of any such breach or threatened breach;
provided,
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however, that nothing contained herein shall be construed as prohibiting the Company or any
of its Affiliates from pursuing any other rights and remedies available for any such breach or
threatened breach.
In the event that the Employee’s employment is terminated pursuant to clauses (ii) or (vii) of
Section 7(a) above, the covenants and agreements of the Employee under this Section 9 shall
terminate at the end of the twelve-month period following such termination.
10.
Binding Effect. Without limiting or diminishing the effect of Section 8
hereof, this Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, successors, legal representatives and permitted assigns.
11.
Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and either delivered in person or sent by first
class certified or registered mail, postage prepaid, if to the Company, at the Company’s principal
place of business, and if to the Employee, at her home address most recently filed with the Company,
or to such other address or addresses as either party shall have designated in writing to the
other party hereto.
12. Law Governing. Except for conflicts of laws provisions, this Agreement
shall be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
13.
Severability. The Employee agrees that in the event that any court of
competent jurisdiction shall finally hold that any provision of Section 6 or 9 hereof is void
or constitutes an unreasonable restriction against the Employee, the provisions of such Section 6
or 9 shall not be rendered void but shall apply with respect to such extent as such court may
judicially determine constitutes a reasonable restriction under the circumstances. If any part
of this Agreement other than Section 6 or 9 is held by a court of competent jurisdiction to be
invalid, illegible or incapable of being enforced in whole or in part by reason of any rule of
law or public policy, such part shall be deemed to be severed from the remainder of this Agreement
for the purpose only of the particular legal proceedings in question and all other covenants
and provisions of this Agreement shall in every other respect continue in full force and effect
and no covenant or provision shall be deemed dependent upon any other covenant or provision.
14.
Arbitration of Disputes. Any dispute, controversy or claim arising out of
this Agreement shall be settled by mandatory binding arbitration in accordance with this
Section. Any arbitration under this Section shall be conducted in accordance with the American Health
Lawyers Association Alternative Dispute Resolution Service Rules of Procedure for Arbitration,
and judgment upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The place of arbitration shall be Orange County, Florida. The
arbitrators shall decide legal issues pertaining to the dispute, controversy or claim pursuant to the laws
of the Commonwealth of Pennsylvania. Subject to the control of the arbitrators, or as the parties
may otherwise mutually agree, the parties shall have the right to conduct reasonable
discovery, pursuant to the Federal Rules of Civil Procedure. The arbitrators shall not have the authority
to award punitive damages, but shall have authority to award equitable relief. THE PARTIES
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UNDERSTAND THAT THEY ARE KNOWINGLY AND WILLINGLY EXPRESSLY WAIVING A RIGHT TO JURY TRIAL CONCERNING
ANY MATTERS RELATING TO THIS AGREEMENT.
15.
Waiver. Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition,
nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or times.
16.
Entire Agreement; Modifications. This Agreement constitutes the entire
and final expression of the agreement of the parties with respect to the subject matter hereof
and supersedes all prior agreements, oral and written, between the parties hereto with respect to
the subject matter hereof. This Agreement may be modified or amended
only by an instrument in
writing signed by both parties hereto.
17.
Counterparts. This Agreement may be executed in two or more
counter parts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have duly executed and delivered this
Agreement as of the day and year first above written.
| TANDEM HEALTH CARE, INC. | Employee | |||||
By:
|
/s/ Xxxxxxxx X. Xxxxxxx | By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Xxxxxxxx X. Xxxxxxx | Xxxxxxxx X. Xxxxxxxx | |||||
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