1
EXHIBIT 10.28
RESTATED AND AMENDED EMPLOYMENT AGREEMENT
RESTATED AND AMENDED EMPLOYMENT AGREEMENT between Community Care Services,
Inc., a New York corporation (the "Corporation") and Xxxxxxx X. Xxxxx
("Executive") dated as of April 1, 1999.
W I T N E S S E T H:
WHEREAS, the Corporation and Executive have entered into an Employment
Agreement (the "Employment Agreement") and Non-Competition Agreement (the
"Non-Competition Agreement"), both dated May 10, 1997; and
WHEREAS, Executive and the Corporation desire to restate and amend the
Employment Agreement as set forth herein;
WHEREAS, Executive and the Corporation desire to incorporate the terms of
the Non-Competition Agreement into the Employment Agreement and to terminate the
original Non-Competition Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
1. Employment Agreement and Non-Competition Agreement Superseded. The
Employment Agreement and Non-Competition Agreement are hereby terminated and
superseded by this Restated and Amended Employment Agreement.
2. Employment. The Corporation agrees to and does hereby continue to
employ and Executive agrees to and does hereby accept continued employment by
the Corporation, as Senior Vice President of the Corporation, or in any other
similar capacity as
2
determined by its Chief Executive Officer, subject to the supervision and
direction of its Chief Executive Officer, for the period commencing on April 1,
1999 and ending at midnight on May 10, 2004, subject to prior termination in
accordance with the provisions hereof (the "Term"). The Term may be extended for
successive one year periods, as mutually agreed in writing by the Corporation
and Executive; provided that the Corporation will give notice to Executive at
least six months prior to the end of the Term or any extension thereof if it
desires to extend this Agreement. The Term less any reduction or extensions of
the Term pursuant to the provisions hereof, shall be referred to in this
Agreement as the "Employment Period."
3. Scope of Duties. As Senior Vice President, Executive will carry out all
reasonable tasks which are typically commensurate with such position assigned to
him by the Board of Directors and the Chief Executive Officer. Executive agrees
that he will devote his full time and effort during the Employment Period to the
performance of the duties of his office. Executive shall make his business
headquarters at Mount Vernon, New York and shall relocate should the Corporation
change its headquarters; provided, however, that in no event will Executive be
required to relocate outside of a thirty (30) mile radius from Mt. Xxxxxx, New
York. Executive shall undertake such travel as the Corporation may request.
4. Compensation.
(a) Executive Compensation. For the services and duties to be
rendered and performed by Executive during the Employment Period, the
Corporation agrees to pay Executive compensation at the rate of Two Hundred
Twenty Five Thousand Dollars ($225,000.00) per annum (hereinafter referred to as
"Executive Compensation"), effective
2
3
April 1, 1999. Executive Compensation shall be payable in accordance with the
Corporation's customary payroll practices. The Corporation shall reimburse
Executive for all expenses reasonably and necessarily incurred in connection
with his employment by the Corporation, including business related travel and
entertainment expenses while absent on the Corporation's business from its
business headquarters, subject to the limitations and guidelines generally
imposed by the Corporation on its executives.
(b) Car Allowance. During the Employment Period, Executive shall be
entitled to an automobile allowance of Seven Hundred Dollars ($700) per month,
which shall be taxable to Executive to the extent that the automobile is used
for non-business purposes.
(c) Bonus and Incentive Compensation. During the Employment Period,
Executive will be eligible to participate in bonus and incentive compensation
programs for executives that may be established by the Corporation from time to
time.
5. Vacation. During the first two (2) years of the Employment Period,
Executive shall be entitled to a paid vacation in each such year equal to three
(3) weeks. Thereafter, Executive shall be entitled to four (4) weeks paid
vacation per year. Said vacation may be taken at the sole discretion of
Executive. Executive shall also be entitled to paid sick and personal days in
accordance with the Corporation's policies for senior executives, as adopted
from time to time.
6. Nondisclosure. Executive acknowledges that as an officer of the
Corporation and several of its Affiliates (as defined below) he has been, and as
an executive of the Corporation and , at the discretion of the Corporation, one
or more of the Affiliates, throughout the Employment Period he will be, privy to
trade secrets and other proprietary
3
4
and/or confidential information (whether in written, verbal or any other form)
relating to the existing or contemplated business and/or field of interest of
the Corporation and its Affiliates, or of any corporation or other legal entity
in which the Corporation or any of its Affiliates has an ownership interest of
more than five percent (5%), and any proprietary information (whether in
written, verbal or any other form) of any of the Corporation's customers,
suppliers, licensor or licensees, including, but not limited to, information
relating to inventions, disclosures, processes, systems, methods, formulae,
patents, patent applications, machinery, materials, notes, drawings, research
activities and plans, costs of production, contract forms, prices, volume of
sales, promotional methods, list of names or classes or customers, which he has
heretofore acquired or which he may hereafter acquire during his employment with
the Corporation or any of its Affiliates, in both cases whether during or
outside business hours, whether or not on the Subsidiary's or the Corporation's
premises, as the result of any disclosures to him, or in any other way, shall be
regarded as held by him in a fiduciary capacity solely for the benefit of the
Corporation, its successors or assigns, and shall not at any time, either during
the Employment Period or thereafter, be disclosed, divulged, furnished, or made
accessible by him to anyone, or be otherwise used by him, except in the regular
course of business of the Corporation or its Affiliates. Upon termination of his
employment, Executive shall promptly return or deliver to the Corporation all
tangible forms of such information in his possession or control, and shall
retain no copies thereof. Information shall, for purposes of this Agreement, be
considered to be confidential if not known by the trade generally, even though
such information may have been disclosed on a confidential basis to one or more
third parties pursuant to any business discussion or agreement, including
distribution agreements, joint research
4
5
agreements or other agreements entered into by the Subsidiary or the Corporation
or any of their Affiliates. For the purposes of this Agreement, "Affiliates"
shall mean any corporation, partnership, joint venture, other entity of any type
or individual that directly or indirectly, through one or more intermediaries,
controls or is controlled, or is under common control with, the Subsidiary or
the Corporation, as the case may be.
7. Patents. Executive agrees to and does hereby sell, assign, transfer and
set over to the Corporation, its successors, assigns, or Affiliates, as the case
may be, all his right, title, and interest in and to any inventions,
improvements, processes, patents or applications for patents which he develops
or conceives individually or in conjunction with others during his employment by
the Corporation, or, having possibly conceived same prior to his employment, may
complete while in the employ of the Corporation or any of its Affiliates, in
both cases whether during or outside business hours, whether or not on the
Corporation's premises, which inventions, improvements, processes, patents or
applications for patents are (i) in connection with any matters within the scope
of the existing or contemplated business of the Corporation or any of its
Affiliates or (ii) aided by the use of time, materials, facilities or
information paid for or provided by the Corporation, all of the foregoing to be
held and enjoyed by the Corporation, its successors, assigns or Affiliates, as
the case may be, to the full extent of the term for which any Letters Patent may
be granted and as fully as the same would have been held by Executive, had this
Agreement not been made. Executive will make, execute and deliver any and all
instruments and documents necessary to obtain patents for such inventions,
improvements and processes in any and all countries. Executive hereby
irrevocably appoints the Corporation to be his attorney in fact in the name of
and on behalf of Executive to execute all such instruments and do all such
5
6
things and generally to use Executive's name for the purposes of assuring to the
Corporation (or its nominee) the full benefit of its rights under the provisions
of this Article 7, such power to be exercised only if Executive improperly
refuses to fulfill his obligations under this Article 7.
8. Restriction on Competition. Executive covenants and agrees that during
the Executive's Employment Period and for a period of one (1) year after
Executive's last day of employment, he will not (i) enter, directly or
indirectly, into the employ of or render, directly or indirectly, any services
to any person, firm or corporation engaged in any business competitive with the
business of the Corporation in any part of the Restricted Territory, as
hereinafter defined, in which the Corporation is doing business on the date of
termination; (ii) engage, directly or indirectly, in any such business for his
own account; (iii) become interested, directly or indirectly, in any such
business as an individual, partner, shareholder, creditor, director, officer,
principal, agent, employee, trustee, consultant, advisor or in any other
relationship or capacity; (iv) contact or solicit, or attempt to contact or
solicit, any person or entity for whom the Corporation performed services or
actively marketed for the purpose of performing services, or with whom Executive
had any dealings, during the one (1) year period immediately prior to the
termination of Executive's Employment Period; or (v) hire, subcontract, employ
or engage, or contract or solicit, for the purpose of hiring, subcontracting,
employing or engaging, any person or entity who was an employee of the
Corporation at the time of the termination of Executive's Employment Period or
during the one (1) year period immediately prior to the termination of
Executive's Employment Period.
6
7
For the purposes of this Agreement, "Restricted Territory" shall mean the
following counties: in the State of New York: New York, Bronx, Queens, Kings,
Richmond, Nassau, Suffolk, Westchester, Rockland, and Orange Counties; in the
State of Connecticut: Fairfield and Hartford Counties and in the State of New
Jersey: Bergen, Essex, Sussex, Passaic and Xxxxxx Counties.
9. Earlier Termination.
(a) Death. In the event of the death of Executive during the
Employment Period, this Agreement shall automatically terminate on the date of
his death. Upon termination of this Agreement pursuant to this Article 9(a), the
Corporation shall have no further obligations or liabilities under this
Agreement other than to pay to Executive's estate (i) the portion, if any, of
his compensation that remains accrued but unpaid, (ii) the amount of any
expenses reimbursable in accordance with Article 9(a) above and (iii) any
amounts due under any of the Corporation's benefit, welfare or pension plans or
under any bonus or incentive plans.
(b) Disability. In the event of Executive's Total Disability (as
defined below) for one hundred eighty (180) days in the aggregate during any
consecutive twelve (12) month period during the Employment Period, the
Corporation shall have the right to terminate this Agreement by giving Executive
thirty (30) days' prior written notice thereof and, upon the expiration of such
thirty (30) day period, Executive's employment under this Agreement shall
terminate. If Executive shall resume his duties within thirty (30) days after
receipt of such a notice of termination and continue to perform his duties for
two (2) consecutive weeks thereafter, then the Employment Period shall be deemed
to continue in full force and effect, without any reduction in salary and other
benefits, and the
7
8
notice of termination shall be considered null and void and of no effect. Upon
termination of this Agreement pursuant to this Article 9(b), the Corporation
shall have no further obligations or liabilities under this Agreement other than
to pay to Executive (i) the portion, if any, of his compensation that remains
accrued but unpaid, (ii) the amount of any expenses reimbursable in accordance
with Article 4(a) above, and (iii) any amounts due under any of the
Corporation's benefit, welfare or pension plans or any bonus or incentive plans.
The term "Total Disability," as used herein, shall mean a mental or
physical condition which, in the reasonable opinion of an independent medical
doctor designated by the parties, renders Executive unable or incompetent to
carry out his material duties and responsibilities under this Agreement.
Notwithstanding the foregoing, if Executive is covered under any policy of
disability insurance obtained by the Corporation, under no circumstances shall
the definition of "Total Disability" differ from the definition of that term in
such policy. If the parties are unable to agree upon an independent medical
doctor to render an opinion, each shall designate one medical doctor, and the
two so designated shall jointly select a third independent medical doctor, whose
decision shall be binding.
(c) Termination for Cause. The Corporation may discharge Executive
for "Cause" upon notice and thereby immediately terminate his employment under
this Agreement. For purposes of this Agreement, the Corporation shall have
"Cause" to terminate Executive's employment if Executive, in the reasonable
judgment of the Corporation, (i) materially breaches any of his agreements,
obligations or duties under this Agreement and does not cure such breach or
commence in good faith to correct such breach within thirty (30) days after
notice, (ii) fails to carry out any reasonable lawful directive of the Chief
Executive Officer of the Corporation which Executive is required to do pursuant
8
9
to this Agreement and does not cure such breach or commence in good faith to
correct such breach within ten (10) days after notice, (iii) embezzles or
converts to his own use any funds of the Corporation or any client or customer
of the Corporation, (iv) willfully converts to his own use any property of the
Corporation without the Corporation's consent, (v) is convicted of a felony
(other than a vehicular infraction which does not involve injuries to persons or
property), or (vi) is adjudicated an incompetent.
10. Employee Benefits. Executive shall be entitled to participate in the
Corporation's medical plan and in the Corporation's existing 401(k) plan. In
addition to the foregoing, the Corporation shall pay up to $25,000 per year on
behalf of Executive to fund Executive's participation in such supplemental
executive benefit programs as may be requested by Executive, subject to the
consent of the Chief Executive Officer, which shall not be unreasonably
withheld.
11. Assignment. In the event of a future disposition by the Corporation
(whether direct or indirect, by sale of assets or stock, merger, consolidation
or otherwise) of all or substantially all of its business and/or assets, the
Corporation will require any successor, by agreement in form and substance
satisfactory to Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform if no such disposition had taken place.
12. Notices. All notices required or permitted to be given hereunder shall
be mailed by certified mail, delivered by recognized overnight courier service
for which a written receipt is given, or delivered by hand to the party to whom
such notice is required or permitted to be given hereunder. If mailed, any such
notice shall be deemed to have been given when mailed as evidenced by the
postmark at point of mailing. If delivered by hand,
9
10
any such notice shall be deemed to have been given when received by the party to
whom notice is given, as evidenced by written and dated receipt of the receiving
party.
Any notice to the Corporation or to any assignee of the Corporation shall
be addressed as follows:
Community Care Services, Inc.
00 Xxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Any notice to Executive shall be addressed to the Executive's address
appearing on the records of the Corporation at the time such notice is given.
Executive at any time may by written notice designated an attorney who is to
receive copies of all notices.
Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
13. Applicable Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of New York governing contracts made in
and to be performed solely in such State.
14. Effective Date. This Agreement shall become effective as of the date
first written above.
15. Waiver of Breach. The waiver by either party of a breach of this
Agreement shall not be effective unless in writing signed by the party to be
charged therewith and will not operate or be construed as a waiver of any other
subsequent breach.
16. Equitable Relief. With respect to the covenants contained in Articles
6, 7 and 8 of this Agreement, Executive agrees that any remedy at law for any
breach of said covenants may be inadequate and that the Corporation shall be
entitled to specific performance or any other mode of injunctive and/or other
equitable relief a court might
10
11
award, including, but not limited to, an injunction restraining such breach or
threatened breach, in addition to any other remedies which might be available to
it.
IN WITNESS WHEREOF, the parties hereto have executed the above Agreement
as of the day and year first above written.
COMMUNITY CARE SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxxx, Chief Financial Officer
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Xxxxxxx X. Xxxxx
11
