Amendment No. 3 to EMPLOYMENT AGREEMENT
EXHIBIT
10.4
Amendment
No. 3
to
THIS
AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT (“Agreement”) effective as of March 31,
2008, by and between Xxxxxxx X.
Xxxxxxx (“Xx. Xxxxxxx”) and Sun Health Specialty Services,
Inc., a New Mexico corporation (“SHSS”);
WHEREAS,
SHSS is a wholly owned subsidiary of SunBridge Healthcare Corporation
(“SunBridge” or “Company”), which is a wholly owned subsidiary of Sun Healthcare
Group, Inc. (“SHG”);
WHEREAS,
SunBridge and its direct and indirect subsidiaries (collectively, the “LTC
subsidiaries”) provide inpatient services throughout the United
States;
WHEREAS,
SHSS has service agreements with the LTC subsidiaries to provide employees,
including Xx. Xxxxxxx, to the LTC subsidiaries;
WHEREAS,
Xx. Xxxxxxx has been appointed as President and Chief Operating Officer of
SunBridge and SHG Services, Inc., the subsidiary of SHG that is a holding
company for other operating subsidiaries of SHG that are not LTC subsidiaries;
and
WHEREAS,
SHSS and Xx. Xxxxxxx entered into an Employment Agreement dated as of February
28, 2002 and amended such Employment Agreement as of October 12, 2006 and
October 31, 2007 (collectively, the “Employment Agreement”), and they desire to
amend the Employment Agreement with respect to the terms and conditions of Xx.
Xxxxxxx’ bonus eligibility, as set forth below (capitalized terms used in this
Agreement without definition shall have the meanings provided in the Employment
Agreement).
NOW,
THEREFORE, in consideration of the above recitals and the mutual covenants and
agreements contained herein, Xx. Xxxxxxx and SHSS agree as follows:
1. Amendment.
(a) Section 3(b) of the Agreement is amended by deleting it in its entirety and
inserting the following in lieu thereof:
|
|
(b) Cash
Bonus/Incentive Compensation. In addition to the Base Salary
provided for in Section 3(a) above, Xx. Xxxxxxx shall be entitled to
receive an annual bonus (“Bonus”) in accordance with the Sun Healthcare
Group, Inc. Executive Bonus Plan, as it may be amended from time to time
by the Compensation Committee of the Board of Directors of SHG; provided,
however, that no amendment shall be
|
|
|
effective if
it reduces the percentage of Base Salary that would constitute the
minimum or maximum potential amount of the Bonus as compared to the
prior year, unless such amendment has been agreed to in writing by Xx.
Xxxxxxx.
The Bonus shall be payable at the same time as other annual bonuses are
paid to senior management personnel. Subject to the provisions
of Section 6, in order to have earned and to be paid any such Bonus, Xx.
Xxxxxxx must be employed by SHSS on the date of such payment. It is
intended that the Bonus described in this Section 3(b) qualify as
"performance based compensation" under Section 162(m) of the Code to the
extent necessary to preserve the ability to deduct such Bonus. In the
event the minimum financial performance threshold is met as set forth
in the Plan, Xx. Xxxxxxx’ minimum Bonus shall be no less than 10% of his
Base Salary for the applicable fiscal
year.
|
|
|
(b) Schedule
A to the Agreement is deleted in its
entirety.
|
2. Miscellaneous.
|
(a)
|
Amendments,
Waivers, Etc. Except as otherwise provided herein, no
provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing signed by
both parties. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall
be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent
time.
|
|
(b)
|
Entire
Agreement. The Employment Agreement, as amended by this
Agreement, sets forth the entire agreement and understanding of the
parties hereto with respect to the matters covered hereby and supersedes
all prior agreements and understandings of the parties with respect to the
subject matter hereof. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not expressly set forth in
the Employment Agreement, as amended hereby, and the Employment Agreement,
as so amended, shall supersede all prior agreements, negotiations,
correspondence, undertakings and communications of the parties, oral or
written, with respect to the subject matter hereof. Except for
the changes set forth in Section 1, the Employment Agreement shall remain
in full force and effect.
|
|
(c)
|
Counterparts. This
Agreement may be executed in one or more counterparts, each of which, when
so executed and delivered, shall be deemed an original, but all such
counterparts together shall constitute
one
|
2
and the
same instrument.
The parties hereto have executed this
Agreement as of the date first above written.
|
/s/
Xxxxxxx X. Xxxxxxx
|
March
27, 2008
|
|
Xxxxxxx
X. Xxxxxxx
|
Date
|
|
SUN
HEALTH SPECIALTY SERVICES, INC.
|
|
|
By
/s/ Xxxxxxx Xxxxxx
|
March
31, 2008
|
|
Its
Vice President
|
Date
|
3
