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EXHIBIT 10.12
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
EMPLOYMENT AGREEMENT
WITH
XXXX X. XXXXX
AGREEMENT as of the 20th day of October, 1999, between Xxxx X.
Xxxxx, residing at 00 Xxx Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 ("Executive"), and
TENDER LOVING CARE HEALTH CARE SERVICES, INC. ("Company"), a Delaware
corporation, having its principal place of business at 0000 Xxxxxx Xxxxxx, Xxxx
Xxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, the Company wishes to secure the services of
Executive on the terms and conditions set forth below; and
WHEREAS, the Executive is willing to accept employment with
TLC on such terms and conditions.
NOW, THEREFORE, in consideration of the premises and mutual
agreements hereinafter contained, the parties hereto do agree as follows:
1. Employment. The Company will employ the Executive as
President and Chief Operating Officer in accordance with all of the terms and
conditions set forth in this Agreement.
2. Term. The term of Executive's employment under this
Agreement shall commence effective as of the date hereof and subject to the
terms and conditions of this
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Agreement, shall continue for a period of sixty (60) consecutive months. This
Agreement shall be automatically renewed for the sixty (60) month period
following each anniversary date hereof (an "Anniversary Date") unless Executive
or the Company shall have filed an election to terminate, as hereinafter
provided, in which event Employee's employment shall terminate sixty (60) months
after the filing of such election. Such election to terminate shall be made by
either Executive or the Company by notice in writing to the other, on or before
the Anniversary Date of any year of employment, and in such case the effective
date of such election shall be deemed to be the Anniversary Date of such year of
employment.
3. Compensation.
(a) The Company shall pay to Executive, for all services
rendered by Executive under this Agreement, a base salary at the rate of
$400,000 per year ("Base Salary") payable in equal installments (not less
frequently than monthly) in accordance with the Company's regular payroll
practices.
(b) Notwithstanding the amounts set forth above, Executive may
be entitled to additional compensation, in the discretion of the Board of
Directors of the Company, for serving as a director and acting as a member and
attending meetings of the Board.
4. Duties. Executive is engaged to serve as President and
Chief Operating Officer of the Company and shall perform such duties and
functions as is compatible with that position as the Company from time-to-time
may determine. During the term of this Agreement, Executive shall devote all of
his business time to the affairs of the Company, subject to his limited duties
as an employee of Staff Builders, Inc., a Delaware corporation.
5. Expenses. Executive is authorized to incur expenses for
promoting the business of the Company which are reasonable and necessary in the
exercise of his duties, including reasonable expenses for entertainment, travel
and similar items. The Company shall
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reimburse Executive promptly for all such expenses upon presentation by
Executive, from time to time, of an itemized account of expenditures.
6. Vacation. The Executive is entitled to five (5) weeks
annual vacation. If the vacation time is not used within the annual period the
Executive will not be entitled to carry over the unused vacation time.
7. Death or Disability. In the event Executive becomes
disabled, the Employer's obligations hereunder, including Section 3, shall not
be affected thereby, and Executive's duties under Section 4 may be reduced only
if, and the event that, his disability prevents him from fully or completely
satisfying any duty thereunder. In the event of the death of the Executive, the
compensation at date of death, without further adjustment, shall be paid monthly
as a death benefit (through the end of the then-current sixty (60) month term)
to his estate, or if he so designates, his beneficiary.
8. Welfare Benefits. Executive shall be entitled to continue
to receive or participate in all benefits, such as life, health, medical and
disability plans, profit sharing plans, pension plans and the like ("Welfare
Plans"), which the Company may make generally available to its senior executive
employees. Executive shall be entitled to the above-described benefits so long
as Executive serves as an employee of the Company, or as otherwise provided by
the terms and conditions of the Welfare Plans.
9. Change of Control. In the event that at any time after a
Change of Control (as defined below) but prior to the end of twelve months after
such Change of Control Executive is discharged for any reason (other than the
conviction of a felony) or leaves for any reason Executive shall receive within
thirty (30) days after such discharge a lump sum severance payment equal to 2.99
times the "average annual base salary" paid to him. For the purposes of this
Section 9 "average annual base salary shall mean the average of Executive's
annual income in the nature of compensation payable by the Company and
includible in gross income over the five most recent taxable years ending before
the Change in Control.
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A "Change of Control" shall be deemed to occur when a person,
corporation, partnership, association or entity (x) acquires a majority of the
Company's outstanding voting securities, or (y) acquires securities of the
Company bearing a majority of voting power with respect to election of directors
of the Company, or (z) acquires all or substantially all of the Company's
assets.
10. Termination. It is specifically understood and
acknowledged that the only ground upon which the Company can terminate this
Agreement, except under paragraph 2 hereof, is if Executive is found guilty of a
crime resulting in his conviction as a felon in New York State. It is expressly
agreed and understood between the parties that in the event Executive shall
violate any provision of this Agreement, the sole remedy of the Company shall be
to institute and prosecute proceedings at law in accordance with Section 12, and
not termination of Executive's employment. Executive shall be under no
obligation to minimize or mitigate damages by seeking other employment or
otherwise in the event the Company breaches or does not fulfill its obligations
under this Agreement. It is further agreed that in the event of a default by the
Company of its obligations under this Agreement or of an unsuccessful action by
the Company against Executive for his alleged violation of this Agreement,
Executive shall be entitled to recover from the Company all his expenses of
enforcing or defending any action arising out of this Agreement, including his
reasonable legal fees and expenses.
11. Noncompetition by Executive.
(a) Upon termination of Executive's employment hereunder for
any reason, Executive agrees not to compete, in the manner described
hereinafter, with the business currently conducted by the Company in the United
States, for a period of six (6) months following such termination. Executive
agrees that, during such period, he will not be employed by, work for, advise,
consult with, serve or assist in any way, directly or indirectly, any party
whose activities or .business is similar to that of the Company. The foregoing
restrictions on competition by Executive shall be operative for the benefit of
the Company and of any business owned or controlled by the Company, or any
successor or assign of any of the foregoing.
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(b) If the period of time or geographical areas specified
under this section should be determined to be unreasonable in any judicial
proceeding, then the period of time and areas of the restriction shall be
reduced so that this Agreement may be enforced in such areas and during such
period of time as shall be determined to be reasonable.
12. Arbitration. The Executive and Company hereby agree that
if any dispute arises between them, such dispute shall be determined by
arbitration in the State of New York in accordance with the rules of the
American Arbitration Association then in effect. The award rendered by such
arbitration shall be final and binding upon the parties hereto, and a judgment
upon the award so rendered may be entered in any court of competent
jurisdiction.
13. Waiver. Failure to insist upon 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 time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
14. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision. The parties to this Agreement agree and intend that this
Agreement shall be enforced as fully as it may be enforced consistent with
applicable statutes and rules of law.
15. Benefit. Except as otherwise herein expressly provided,
this Agreement shall inure to the benefit of and be binding upon the Company,
its successors and assigns, including, without limitation, any corporation which
may acquire all or substantially all of the Company's assets or business or with
or into which the Company may be consolidated or merged, and to the benefit of,
and be binding upon, Executive, his heirs, executors, administrators and legal
representatives.
16. Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties hereto, supersedes any and all
prior discussions, agreements
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and correspondence with regard to the subject matter hereof, and may not be
amended, modified or supplemented in any respect, except by a subsequent writing
executed by both parties hereto.
17. Applicable Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without giving effect to principles of conflicts of law.
18. Remedy for Breach. Any action to enforce, arising out of,
or relating in any way to, any of the provisions of this Agreement shall be an
action at law pursuant to the provisions of Section 12 of this Agreement.
19. Notices. All notices required hereby or given under this
Agreement shall be in writing and shall be served either personally or by
certified mail, return receipt requested, at the following addresses, or at such
other address as the parties may designate to one another in writing:
To the Company: Tender Loving Care Health Care Services, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
To Executive: Xxxx X. Xxxxx
00 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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All notices shall be deemed given when so received. All change of address
notices shall be given in the same manner as provided above.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
By:/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Chairman of the Board
and Chief Executive Officer
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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