EXHIBIT 10.94
EMPLOYMENT AGREEMENT
Employment Agreement dated as of September 8, 1999 between Xxxxxxx X.
Xxxx (the "Executive") and Mariner Post-Acute Network, Inc., a Delaware
corporation (the "Company").
WHEREAS, the Company desires to employ the Executive as its Chairman
of the Board, President and Chief Executive Officer, and the Executive desires
to accept such employment, for the term and upon the other conditions
hereinafter set forth; and
WHEREAS, the parties desire to enter into this Agreement setting forth
the terms and conditions of the employment relationship of the Executive with
the Company.
NOW, THEREFORE, the parties agree as follows:
1. Employment. The Company hereby employs the Executive, and the
----------
Executive hereby accepts employment with the Company, upon the terms and subject
to the conditions set forth herein.
2. Term. This Agreement shall become effective on September 8, 1999
----
(the "Effective Date"). This Agreement is for the three-year period (the "Term")
commencing on the Effective Date and terminating on the third anniversary of the
Effective Date, or upon the Executive's earlier death, disability or other
termination of employment pursuant to Section 11; provided, however, that
commencing on the third anniversary of the Effective Date and on each
anniversary thereafter, the Term shall automatically be extended for one
additional year unless, not later than six (6) months prior to any such
anniversary, either party hereto shall have notified the other party hereto in
writing that such extension shall not take effect.
3. Position. During the Term, the Executive shall serve as Chairman
--------
of the Board and Chief Executive Officer of the Company and, pending the
appointment of a President, President of the Company or in such other senior
executive position in the Company as the Executive shall approve.
4. Duties and Reporting Relationship. During the Term, the Executive
---------------------------------
shall, on a full time basis, use his skills and render services to the best of
his abilities in supervising and conducting the operations of the Company and
shall not engage in any other business activities except with the prior written
approval of the Board of Directors of the Company (the "Board") or its duly
authorized designee. Notwithstanding the preceding sentence, nothing contained
herein shall prevent the Executive from serving as a director of any company or
other entity, provided, that, the Executive does not devote a material amount of
-------- ----
his time to such service or participate in the management or operation of such
entity. The Executive shall report to the Board and, subject to the powers,
authorities and responsibilities vested in the Company's Board under the General
Corporation Law of the State of Delaware and in duly constituted committees of
the Board, the Executive shall have responsibility and authority for the overall
strategic policies, management and
leadership of the Company. The Executive shall also perform such other executive
and administrative duties (not inconsistent with the position of Chairman of the
Board, President and Chief Executive Officer) as the Executive may reasonably be
expected to be capable of performing on behalf of the Company, as may from time
to time be authorized or directed by the Board. The Executive agrees to be
employed by the Company in all such capacities for the Term, subject to all the
covenants and conditions hereinafter set forth.
5. Place of Performance. The Executive shall perform his duties and
--------------------
conduct his business at the principal executive offices of the Company, except
for required travel on the Company's business.
6. Salary and Annual Bonus.
-----------------------
(a) Base Salary. The Executive's base salary hereunder
-----------
shall be $800,000 a year, payable monthly. The Board shall review such base
salary at least annually and make such adjustment from time to time as it may
deem advisable, but the base salary shall not at any time be less than $800,000
a year.
(b) Annual Bonus. The Company shall provide the Executive
------------
with an annual bonus plan providing the Executive with an opportunity to earn an
annual bonus equal to between fifty percent (50%) and one hundred fifty percent
(150%) of his base salary if the Company achieves for the relevant year certain
financial targets established pursuant to such plan.
(c) Relocation Bonus. On the Effective Date, in
----------------
consideration of the Executive's relocation to Atlanta, Georgia, the Company
shall pay to the Executive $200,000 (subject to any applicable payroll or other
taxes required to be withheld).
7. Vacation, Holidays and Sick Leave. During the Term, the Executive
---------------------------------
shall be entitled to paid vacation, paid holidays and sick leave in accordance
with the Company's standard policies for its senior executive officers.
8. Business Expenses. The Executive shall be reimbursed for all
-----------------
ordinary and necessary business expenses incurred by him in connection with his
employment upon timely submission by the Executive of receipts and other
documentation as required by the Internal Revenue Code and in conformance with
the Company's normal procedures. The Executive shall receive an automobile
allowance of $1,000 per month during the term of this Agreement.
9. Pension and Welfare Benefits.
----------------------------
(a) Except as set forth in Section 9(b), during the
Term, the Executive shall be eligible to participate fully in all health
benefits, insurance programs, pension and retirement plans and other employee
benefit and compensation arrangements available to senior officers of the
Company generally.
2
(b) From September 8, 1999, until March 31, 2000, the
Company shall either (i) assume or (ii) reimburse the Executive for the cost of
obtaining continued coverage under the life insurance and long-term disability
plans under which the Executive was covered while employed by Red Roof Inns,
Inc.; provided, that, the aggregate amount of any such assumed payments or
--------- ----
reimbursements shall not exceed $20,000 per year. Unless the Executive provides
the Company with a written election to the contrary on or prior to March 31,
2000, the obligations of the Company set forth in the first sentence of this
clause (b) shall continue throughout the Term, and the Executive shall not
participate in the life insurance and long-term disability plans otherwise
maintained by the Company. If, on or prior to March 31, 2000, the Executive so
elects by written notice provided to the Company, the obligations of the Company
set forth in the first sentence of this clause (b) shall terminate as of March
31, 2000, and from that date forward, during the Term, the Executive shall
participate in such life insurance and long-term disability plans as may be
maintained from time to time during the Term by the Company for the benefit of
the employees of the Company, to the extent and in such manner available to
other executive officers of the Company and subject to the terms and provisions
of such plans and programs.
10. Value Creation Incentive Plan. The Company, pursuant to the terms
-----------------------------
of a value creation incentive plan substantially similar to the terms set forth
in Appendix A attached hereto (and as approved by the Compensation Committee of
the Board of Directors), shall provide the Executive with an opportunity to earn
additional compensation if the Company achieves certain financial targets
established pursuant to such plan.
11. Termination of Employment.
-------------------------
(a) General. The Executive's employment hereunder may be
-------
terminated without any breach of this Agreement only under the following
circumstances.
(b) Death or Disability.
-------------------
(i) The Executive's employment hereunder shall
automatically terminate upon the death of the Executive.
(ii) If, as a result of the Executive's incapacity
due to physical or mental illness, the Executive is unable to perform the
essential functions of his job for any one hundred eighty (180) days
(whether or not consecutive) during any twelve (12) month period, and no
reasonable accommodation can be made that will allow Executive to perform
his essential functions, the Company may terminate the Executive's
employment hereunder for any such incapacity (a "Disability").
(c) Termination by the Company. The Company may terminate
--------------------------
the Executive's employment hereunder at any time, whether or not for Cause. For
purposes of this Agreement, "Cause" shall mean (i) the failure or refusal by the
Executive to perform his duties hereunder (other than any such failure resulting
from the Executive's incapacity due to physical or
3
mental illness), which has not ceased within ten (10) days after a written
demand for substantial performance is delivered to the Executive by the Company,
which demand identifies the manner in which the Company believes that the
Executive has not performed such duties, (ii) the engaging by the Executive in
willful misconduct or an act of moral turpitude which is materially injurious to
the Company, monetarily or otherwise (including, but not limited to, conduct
described in Section 15) or (iii) the conviction of the Executive of, or the
entering of a plea of nolo contendere by, the Executive with respect to, a
felony. Notwithstanding the foregoing, the Executive's employment hereunder
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than a majority of the entire membership of
the Board, other than the Executive, at a meeting of the Board at which the
Executive recuses himself (after written notice to the Executive and a
reasonable opportunity for the Executive, together with the Executive's counsel,
to be heard before the Board), finding that in the good faith opinion of the
Board the Executive should be terminated for Cause.
(d) Termination by the Executive. The Executive shall be
----------------------------
entitled to terminate his employment hereunder (A) for Good Reason or (B)
without the Executive's express written consent, any failure by the Company to
comply with any material provision of this Agreement, which failure has not been
cured within ten (10) days after notice of such noncompliance has been given by
the Executive to the Company. For purposes of this Agreement, "Good Reason"
shall mean the occurrence (without the Executive's express written consent),
within twenty-four (24) months after a Change in Control during the term of this
Agreement, of any one of the following acts by the Company, or failures by the
Company to act, unless, in the case of any act or failure to act described
below, such act or failure to act is corrected prior to the Date of Termination
specified in the Notice of Termination given in respect thereof:
(I) any change in the Executive's title (other
than upon the appointment of another person to serve as the President of
the Company), authorities, responsibilities (including reporting
responsibilities) which, in the Executive's reasonable judgment, represents
a significant adverse change from his status, title, position or
responsibilities (including reporting responsibilities) which were in
effect immediately prior to the Change in Control or from his status,
title, position or responsibilities (including reporting responsibilities)
which were in effect following a Change in Control pursuant to the
Executive's consent to accept any such change; the assignment to him of any
duties or work responsibilities which are inconsistent with such status,
title, position or work responsibilities; or any removal of the Executive
from, or failure to reappoint or reelect him to any of such positions,
except if any such changes are because of Disability, retirement, death or
Cause;
(II) a reduction by the Company in the Executive's
annual base salary as in effect on the date hereof or as the same may be
increased from time to time except for across-the-board salary reductions
similarly affecting all senior executives of the Company and all senior
executives of any Person (as defined in
4
Section 11(i)(i) below) in control of the Company provided in no event
--------
shall any such reduction reduce the Executive's base salary below $800,000;
(III) the relocation of the Executive's office at
which he is to perform his duties, to a location more than fifty (50) miles
from the location at which the Executive performed his duties prior to the
Change in Control, except for required travel on the Company's business to
an extent substantially consistent with his business travel obligations
prior to the Change in Control;
(IV) the failure by the Company, without the
Executive's consent, to pay to the Executive any portion of the Executive's
current compensation, or to pay to the Executive any portion of an
installment of deferred compensation under any deferred compensation
program of the Company, within seven (7) days of the date such compensation
is due;
(V) the failure by the Company to continue to
provide the Executive with benefits substantially similar in value to the
Executive in the aggregate to those enjoyed by the Executive under any of
the Company's pension, life insurance, medical, health and accident, or
disability plans in which the Executive was participating immediately prior
to the Change in Control, unless the Executive participates after the
Change in Control in other comparable benefit plans generally available to
senior executives of the Company and senior executives of any Person in
control of the Company; or
(VI) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 11(g) below; for purposes of this
Agreement, no such purported termination shall be effective.
The Executive's continued employment for six (6) months after any act or failure
to act constituting Good Reason hereunder shall constitute the Executive's
consent to, and a waiver of rights with respect to, such act or failure to act.
(e) Voluntary Resignation. Should the Executive wish to
---------------------
resign from his position with the Company or terminate his employment for other
than Good Reason during the Term, the Executive shall give sixty (60) days
written notice to the Company ("Notice Period"), setting forth the reasons and
specifying the date as of which his resignation is to become effective. During
the Notice Period, the Executive shall cooperate fully with the Company in
achieving a smooth transition of the Executive's duties and responsibilities to
such person(s) as may be designated by the Company. The Company reserves the
right to accelerate the Date of Termination by giving the Executive notice and
payment of amounts due to the Executive under Section 6(a) and, to the extent
applicable, Section 6(b) for the balance of the Notice Period. The Company's
obligation to continue to employ the Executive or to continue payment of the
amounts described in the
5
preceding sentence shall cease immediately if: (1) the Executive has not
satisfied his obligations to cooperate fully with a smooth transition or (2) the
Company has grounds to terminate the Executive's employment immediately for
Cause. If the Executive terminates his employment for other than Good Reason
within twelve (12) months from the Effective Date, the Executive shall be
obligated to refund the $200,000 that he received prior to the Effective Date
for relocation and related expenses.
(f) Bankruptcy. If the Company shall commence a voluntary
----------
case concerning itself under Title 11 of the United States Code entitled
"Bankruptcy", as now or hereafter in effect, or any successor thereto (the
"Bankruptcy Code"), or an involuntary case is commenced against the Company and
the petition is not dismissed within sixty (60) days after commencement of the
case, or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of the Company, or the
Company commences any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction whether now or hereafter in effect relating to
the Company, or there is commenced against the Company any such proceeding which
remains undismissed for a period of sixty (60) days, then the Executive, in his
sole discretion, may ask the Company to seek to have the court administering
such case or proceeding to approve this Agreement. The Company shall use its
best efforts to file an appropriate motion seeking such approval within 30 days
after receipt of such notice from the Executive. If (i) the Company does not
file such a motion seeking approval of this Agreement within 30 days after
receipt of notice from the Executive or (ii) the court administering such case
or proceeding does not approve this Agreement within 60 days after the motion
seeking such approval is filed, the Executive shall have no further duty to
perform under this Agreement, may cease his performance under this Agreement and
upon ceasing his performance under this Agreement in accordance with this
Section 11(f), the Executive shall be entitled to the benefits and payments set
forth in Section 12(e) hereof.
(g) Notice of Termination. Any purported termination of the
---------------------
Executive's employment by the Company or by the Executive shall be communicated
by written Notice of Termination to the other party hereto in accordance with
Section 19. "Notice of Termination" shall mean a notice that shall indicate the
specific termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
(h) Date of Termination. "Date of Termination" shall mean
-------------------
(i) if the Executive's employment is terminated because of death, the date of
the Executive's death, (ii) if the Executive's employment is terminated for
Disability, the date Notice of Termination is given, (iii) if the Executive's
employment is terminated pursuant to Subsection (c), (d) or (e) hereof or for
any other reason (other than death or Disability), the date specified in the
Notice of Termination (which, in the case of a termination for Good Reason shall
not be less than fifteen (15) nor more than sixty (60) days from the date such
Notice of Termination is given, and in the case of a termination for any
6
other reason shall not be less than thirty (30) days (sixty (60) days in the
case of a termination under Subsection (e) hereof) from the date such Notice of
Termination is given).
(i) Change in Control. For purposes of this Agreement, a
-----------------
Change in Control of the Company shall have occurred if
(i) any "Person" (as defined in Section 3(a)(9)
of the Securities Exchange Act of 1934 (the "Exchange Act") as modified and
used in Sections 13(d) and 14(d) of the Exchange Act (other than (1) the
Company or any of its subsidiaries, (2) any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any of
its subsidiaries, (3) an underwriter temporarily holding securities
pursuant to an offering of such securities, (4) any corporation owned,
directly or indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of the Company's common stock or
(5) Apollo Management, L.P., any of its affiliates and any investments
funds managed by it (collectively, "Apollo"))), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing more than
50% of the combined voting power of the Company's then outstanding voting
securities;
(ii) during any period of not more than two
consecutive years, not including any period prior to the date of this
Agreement, individuals who at the beginning of such period constitute the
Board, and any new director (other than a director designated by a person
(other than Apollo) who has entered into an agreement with the Company to
effect a transaction described in clause (i) of this Section 11(i)) whose
election or designation to the Board or nomination for election by the
Company's stockholders was (A) made pursuant to the Stockholders Agreement
dated as of November 4, 1997, as amended from time to time, (B) made by
Apollo, or (C) approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously
so approved, cease for any reason to constitute at least a majority
thereof;
(iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation, other
than a merger or consolidation in which (A) no person acquires or
beneficially owns a percentage of the combined voting power of the voting
securities of the Company or such surviving or parent entity outstanding
immediately after such merger or consolidation greater than the percentage
of such securities beneficially owned by Apollo or (B) both (1) the voting
securities of the Company outstanding immediately prior thereto continue to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving or parent entity) 50% or more of the
combined voting power of the voting securities of the Company or such
surviving or parent entity
7
outstanding immediately after such merger or consolidation and (2) no
person (other than Apollo) acquires 50% or more of the combined voting
power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a
plan of complete liquidation of the Company or a agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets (or any transaction having a similar effect) other than such a sale
or disposition to Apollo.
(j) Resignation as Member of Board. If the Executive's
------------------------------
employment by the Company is terminated for any reason, the Executive hereby
agrees that he shall simultaneously submit his resignation as a member of the
Board in writing on or before the Date of Termination. If the Executive fails to
submit such required resignation in writing, the provisions of this Section
11(j) may be deemed by the Company to constitute the Executive's written
resignation as a member of the Board effective as of the Date of Termination.
(k) Return of Property. When the Executive shall cease to
------------------
be employed by the Company, the Executive shall promptly surrender to the
Company all Company property, including without limitation, all records and
other documents obtained by him or entrusted to him during the course of his
employment with the Company provided, however, that the Executive may retain
-------- -------
copies of such documents as necessary for the Executive's personal records for
federal income tax purposes.
12. Compensation During Disability, Death or Upon Termination.
---------------------------------------------------------
(a) During any period that the Executive fails to perform
his duties hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), the Executive shall continue to receive his full salary
at the rate then in effect for such period until his employment is terminated
pursuant to Section 11(b)(ii) hereof, provided that payments so made to the
Executive during the Disability Period shall be reduced by the sum of the
amounts, if any, payable to the Executive with respect to such period under
disability benefit plans of the Company or under the Social Security disability
insurance program, and which amounts were not previously applied to reduce any
such payment.
(b) If the Executive's employment is terminated by his
death or Disability, the Company shall pay (i) any amounts due to the Executive
under Section 6(a) through the date of such termination and (ii) an amount equal
to the bonus he would have received for the fiscal year that ends on or
immediately after the Date of Termination, assuming the Company achieved the
lowest target level for which a bonus is paid under the plan described in
Section 6(b), prorated for the period beginning on the first day of the fiscal
year in which occurs the Date of Termination through the Date of Termination. In
addition, if the Executive's employment is terminated by his death, the Company
shall continue to pay to his estate his salary for an additional six months at
the rate then in effect.
8
(c) If the Executive's employment shall be terminated by
the Company for Cause or by the Executive for other than (i) Good Reason or (ii)
clause (B) of the first sentence of Section 11(d) hereof, the Company shall pay
the Executive his full salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given, and the Company shall have no
further obligations to the Executive under this Agreement.
(d) If (A) following a Change in Control the Company shall
terminate the Executive's employment other than for Cause or otherwise repudiate
this Agreement, or (B) following a Change in Control the Executive shall
terminate his employment for Good Reason, then
(i) the Company shall pay the Executive his full
salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given and all other unpaid amounts, if any, to
which the Executive is entitled as of the Date of Termination under any
compensation plan or program of the Company, at the time such payments are
due;
(ii) in lieu of any further salary payments to the
Executive for periods subsequent to the Date of Termination, the Company
shall pay as liquidated damages to the Executive an aggregate amount equal
to the product of (A) the sum of (1) the Executive's annual salary rate in
effect as of the Date of Termination and (2) the average of the annual
bonuses actually paid (including $0 if no such bonus is paid and excluding
the relocation bonus paid to Executive pursuant to Section 6(c) hereof) to
the Executive by the Company with respect to the two full fiscal years
which immediately precede the year of the Term in which the Date of
Termination occurs provided, that, for purposes of this Agreement, if the
-------- ----
Date of Termination occurs after the end of the first full fiscal year, but
before the end of the second full fiscal year that ends after the Effective
Date, then such single year's bonus shall be utilized in the calculation
pursuant to this clause (2), provided, further, that for purposes of this
-------- -------
Agreement, if the Date of Termination occurs before the end of the first
full fiscal year that ends after the Effective Date, the amount of the
bonus paid by the Company to the Executive shall be deemed to be the
amount, if any, payable pursuant to Section 12(d)(iii), and (B) the number
three (3);
(iii) if it is determined that the Company has met
financial objectives established pursuant to its Incentive Compensation
Plan and to pay bonuses to eligible employees for the fiscal year within
which the Date of Termination occurs, the Company shall pay the Executive,
as long as the Executive is otherwise eligible for such payment, his bonus
prorated for the period beginning on the first day of the fiscal year in
which the Date of Termination occurs through the Date of Termination,
payable at the same time and in the same manner as the Company customarily
pays other bonuses;
9
(iv) the Company shall (x) continue coverage for the Executive,
on the same terms and conditions as would be applicable if the Executive
were an active Employee, under the Company's life insurance, medical,
health, disability and similar welfare benefit plans for a period equal to
thirty-six (36) months, and (y) provide the benefits which the Executive
would have been entitled to receive pursuant to any supplemental retirement
plan maintained by the Company had his employment continued at the rate of
compensation specified herein for the remainder of the Term. Benefits
otherwise receivable by the Executive pursuant to clause (x) of this
Section 12(d)(iv) shall be reduced to the extent comparable benefits are
actually received by the Executive from a subsequent employer during the
period during which the Company is required to provide such benefits, and
the Executive shall report to the Company any such benefits actually
received by him; and
(v) the payments provided for in this Section 12(d) (other than
Sections 12(d)(iii) and 12(d)(iv)) shall be made not later than the
thirtieth day following the Date of Termination, provided, however, that if
the Company so elects, the Executive hereby agrees to enter into a
consulting agreement reasonably satisfactory to the Executive, pursuant to
which the Executive shall render consulting services to the Company for a
period of eighteen (18) months following the Date of Termination and the
Company shall pay to the Executive, in eighteen (18) equal monthly
installments, the aggregate amount of $500,000 and the liquidated damages
due to the Executive pursuant to Section 12(d)(ii) shall be reduced by
$500,000.
(e) If prior to any Change of Control the Company shall terminate the
Executive's employment without Cause or otherwise repudiate this Agreement or
the Executive shall cease to perform his duties under this Agreement pursuant
to Section 11(f) or terminate his employment under clause (B) of the first
sentence of Section 11(d) hereof, then
(i) the Company shall pay the Executive his full salary through
the Date of Termination at the rate in effect at the time Notice of
Termination is given and all other unpaid amounts, if any, to which the
Executive is entitled as of the Date of Termination under any compensation
plan or program of the Company, at the time such payments are due;
(ii) in lieu of any further salary payments to the Executive for
periods subsequent to the Date of Termination, the Company shall pay as
liquidated damages to the Executive an aggregate amount equal to the
product of (A) the Executive's annual base salary in effect as of the Date
of Termination and (B) the number two (2); such amount to be paid in
substantially equal monthly installments during the period commencing with
the month immediately following the month in which the Date of Termination
occurs and ending with the month corresponding to the end of the Term
hereunder. Payments otherwise receivable by the Executive pursuant to this
Section 12(e)(ii) shall be reduced to the extent compensation is
10
actually received by the Executive from a subsequent employer during the
period during which the Company is required to make such payments, and the
Executive shall report to the Company any such payments actually received
by him; and
(iii) the Company shall (x) continue coverage for the
Executive, on the same terms and conditions as would be applicable if the
Executive were an active employee, under the Company's life insurance,
medical, health, disability and similar welfare benefit plans for a period
equal to twenty-four (24) months, and (y) provide the benefits which the
Executive would have been entitled to receive pursuant to any supplemental
retirement plan maintained by the Company had his employment continued at
the rate of compensation specified herein for the remainder of the Term.
Benefits otherwise receivable by the Executive pursuant to clause (x) of
this Section 12(e)(iii) shall be reduced to the extent comparable benefits
are actually received by the Executive from a subsequent employer during
the period during which the Company is required to provide such benefits,
and the Executive shall report to the Company any such benefits actually
received by him.
(f) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 12 by seeking other employment or
otherwise, and, except as provided in Sections 12(d) and 12(e) hereof, the
amount of any payment or benefit provided for in this Section 12 shall not be
reduced by any compensation earned by the Executive as the result of employment
by another employer or by retirement benefits.
(g) Release. Prior to making any payment pursuant to Sections
-------
12(d)(ii) , 12(d)(iii) and 12(d)(iv) or Sections 12(e)(ii) and 12(e)(iii),
whichever is applicable, the Company shall have the right to require the
Executive to sign, and the Executive hereby agrees to sign, (i) an agreement to
be bound by the terms of Section 15 of this Agreement and (ii) a waiver of all
claims the Executive may have (including any claims under the Age Discrimination
in Employment Act), other than claims for payments or benefits hereunder or
claims for indemnification for director or officer liability, in connection with
the termination of the Executive's employment with the Company and the Company
may withhold payment of such amount until the period during which the Executive
may revoke such waiver (normally seven days) has elapsed.
13. Representations and Covenants.
-----------------------------
(a) The Company represents and warrants that this Agreement has been
authorized by all necessary corporate action of the Company and is a valid and
binding agreement of the Company enforceable against it in accordance with its
terms. The Company agrees and covenants that it will (i) provide the Executive
with customary director and officer indemnification; and (ii) maintain director
and officer liability insurance which is of a type customarily maintained by
companies of similar size and with a similar business as the Company.
11
(b) The Executive represents and warrants that he is not a party to
any agreement or instrument which would prevent him from entering into or
performing his duties in any way under this Agreement. The Executive agrees and
covenants that he will obtain, and submit to, such physical examinations as may
be necessary to facilitate the Company obtaining an insurance policy for its
benefit insuring the life of the Executive.
14. Successors; Binding Agreement.
-----------------------------
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
(b) This Agreement is a personal contract and the rights and
interests of the Executive hereunder may not be sold, transferred, assigned,
pledged, encumbered, or hypothecated by him, except as otherwise expressly
permitted by the provisions of this Agreement. This Agreement shall inure to
the benefit of and be enforceable by the Executive and his personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still
be payable to him hereunder had the Executive continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to his devisee, legatee or other designee or, if there
is no such designee, to his estate.
15. Confidentiality and Non-Competition Covenants.
---------------------------------------------
(a) The Executive covenants and agrees that he will not at any time
during or at any time after the end of the Term, directly or indirectly, use for
his own account, or disclose to any person, firm or corporation, other than
authorized officers, directors and employees of the Company or its subsidiaries,
Confidential Information (as hereinafter defined) that is treated as trade
secrets by the Company and will not at any time during or for a period of five
(5) years after the end of the Term, directly or indirectly, use for his own
account, or disclose to any person, firm or corporation, other than authorized
officers, directors and employees of the Company or its subsidiaries, any other
Confidential Information. As used herein, "Confidential Information" of the
Company means information of any kind, nature or description which is disclosed
to or otherwise known to the Executive as a direct or indirect consequence of
his association with the Company, which information is not generally known to
the public or in the business in which the Company is engaged or which
information relates to specific investment opportunities within the scope of the
Company's business which were considered by the Executive or the Company during
the term of this Agreement. Confidential Information that is treated as
confidential trade secrets by the Company shall include, but not be limited to,
strategic operating plans and budgets, policy and procedure manuals, computer
programs, financial forms and information, patient or resident lists and
accounts, supplier information, accounting forms and procedures, personnel
policies, information pertaining
12
to the salaries, positions and performance reviews of the Company's employees,
information on the methods of the Company's operations, research and data
developed by or for the benefit of the Company and information relating to
revenues, costs, profits and the financial condition of the Company. During the
Term and, if (i) the Executive's employment is terminated by the Executive for
other than Good Reason or (ii) the Executive shall cease to perform his duties
under this Agreement other than pursuant to Section 11(f), for a period of two
(2) years following the termination of the Executive's employment, the Executive
shall not induce any employee of the Company or its subsidiaries to terminate
his or her employment by the Company or its subsidiaries in order to obtain
employment by any person, firm or corporation affiliated with the Executive.
(b) The Executive covenants and agrees that any information,
materials, ideas, discoveries, techniques or programs developed or discovered by
the Executive in connection with the performance of his duties hereunder shall
remain the sole and exclusive property of the Company and, to the extent it
constitutes Confidential Information, shall be subject to the covenants
contained in the preceding paragraph.
(c) The Executive covenants and agrees that during the Term and, if
(i) the Executive's employment is terminated by the Executive for other than
Good Reason or (ii) the Executive shall cease to perform his duties under this
Agreement other than pursuant to Section 11(f), for a period of two (2) years
following the termination of the Executive's employment, the Executive shall
not, directly or indirectly, own an interest in, operate, join, control, or
participate as a partner, director, principal, officer, or agent of, enter into
the employment of, or act as a consultant to, in any case in which he has
control or supervision over a significant portion of any entity (i) whose
principal business is the operation of one or more skilled nursing facilities or
(ii) which operates a skilled nursing business that is material in relation to
the Company's comparable business and (iii) in either case, which derives at
least 10% of its skilled nursing facility revenue from facilities which are
located within 35 miles of a center or facility operated by the Company.
Notwithstanding anything herein to the contrary, the foregoing provisions of
this Section 15(c) shall not prevent the Executive from acquiring securities
representing not more than 5% of the outstanding voting securities of any
publicly held corporation.
(d) Without limiting the right of the Company to pursue all other
legal and equitable remedies available for violation by the Executive of the
covenants contained in this Section 15, it is expressly agreed by the Executive
and the Company that such other remedies cannot fully compensate the Company for
any such violation and that the Company shall be entitled to injunctive relief,
without the necessity of proving actual monetary loss, to prevent any such
violation or any continuing violation thereof. Each party intends and agrees
that if in any action before any court or agency legally empowered to enforce
the covenants contained in this Section 15, any term, restriction, covenant or
promise contained herein is found to be unreasonable and accordingly
unenforceable, then such term, restriction, covenant or promise shall be deemed
modified to the extent necessary to make it enforceable by such court or agency.
The covenants contained in Section 15 shall survive the conclusion of the
Executive's employment by the Company.
13
16. Tax Considerations.
-------------------
Notwithstanding anything herein to the contrary, in the event any
payments to the Executive hereunder ("Total Payments") are determined by the
Company to be subject to the tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code") or any similar federal or state excise
tax, FICA tax, or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such interest or
penalties are hereinafter collectively referred to as the "Excise Tax"), the
Company shall pay to the Executive at the time specified in Section 12(d)(v), an
additional amount (the "Gross-Up Payment") such that after the payment by the
Executive of all federal, state, or local income taxes, Excise Taxes, FICA
taxes, or other taxes (including any interest or penalties imposed with respect
thereto) imposed upon the receipt of the Gross-Up Payment, the Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Total
Payments.
If the Excise Tax is subsequently determined to be less than the
amount taken into account hereunder at the time of termination of employment,
the Executive shall repay to the Company, at the time the reduction in Excise
Tax is finally determined, the portion of the Gross-Up Payment attributable to
such reduction. If the Excise Tax is determined to exceed the amount taken into
account hereunder at the time of termination of employment, the Company shall
make an additional Gross-Up Payment to the Executive in respect of such excess
at the time the amount of such excess is finally determined. The Executive
shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of the Gross-Up
Payment. Such notification shall be given as soon as practicable but no later
than ten (10) business days after the Executive is informed in writing of such
claim and shall apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid. The Executive shall not pay such
claim prior to the expiration of the thirty (30) day period following the date
on which he gives such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such claim is due). If the
Company notifies the Executive in writing prior to the expiration of such period
that it desires to contest such claim, the Executive shall:
(a) give the Company any information reasonably requested by the
Company relating to such claim;
(b) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company;
(c) cooperate with the Company in good faith in order to effectively
contest such claim; and
(d) permit the Company to participate in any proceedings relating to
such claim;
14
provided, however, that the Company shall bear and pay directly all costs and
-------- -------
expenses (including legal and accounting fees and additional interest and
penalties) incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Excise Tax, FICA tax, or
income tax (including interest and penalties with respect thereto) imposed as a
result of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 16, the Company shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings,
hearings, and conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct the Executive to pay the tax claimed and
xxx for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction, and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Executive, on an
interest-free basis, and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and provided,
further, that any extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, other
issues raised by the Internal Revenue Service or any other taxing authority.
If any such claim referred to in this Section 16 is made by the Internal
Revenue Service and the Company does not request the Executive to contest the
claim within the thirty (30) day period following notice of the claim, the
Company shall pay to the Executive the amount on any Gross-Up Payment owed to
the Executive, but not previously paid pursuant to this Section 16, immediately
upon the expiration of such thirty (30) day period. If any such claim is made
by the Internal Revenue Service and the Company requests the Executive to
contest such claim, but does not advance the amount of such claim to the
Executive for purposes of such contest, the Company shall pay to the Executive
the amount of any Gross-Up Payment owed to the Executive, but not previously
paid under the provisions of this Section 16, within five (5) business days of a
Final Determination of the liability of the Executive for such Excise Tax. For
purposes of this Agreement, a "Final Determination" shall be deemed to occur
with respect to a claim when (i) there is a decision, judgment, decree, or other
order by any court of competent jurisdiction, which decision, judgment, decree,
or other order has become final, i.e., all allowable appeals pursuant to this
Section 16 have been exhausted by either party to the action, (ii) there is a
closing agreement made under Section 7121 of the Code, or (iii) the time for
instituting a claim for refund has expired, or if a claim was filed, the time
for instituting suit with respect thereto has expired.
If, after the receipt by the Executive of an amount advanced by the Company
pursuant to this Section 16, the Executive becomes entitled to receive any
refund with respect to such claim, the
15
Executive shall (subject to the Company's complying with the requirements of
this Section 16) promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If
after the receipt by the Executive of an amount advanced by the Company pursuant
to this Section 16, a determination is made by the Internal Revenue Service that
the Executive is not entitled to any refund with respect to such claim and the
Company does not notify the Executive in writing of its intent to contest such
denial of refund prior to the expiration of thirty (30) days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
17. Entire Agreement. This Agreement contains all the understandings
----------------
between the parties hereto pertaining to the matters referred to herein, and on
the Effective Date shall supersede all undertakings and agreements, whether oral
or in writing, previously entered into by them with respect thereto. The
Executive represents that, in executing this Agreement, he does not rely and has
not relied upon any representation or statement not set forth herein made by the
Company with regard to the subject matter, bases or effect of this Agreement or
otherwise.
18. Amendment or Modification, Waiver. No provision of this
---------------------------------
Agreement may be amended or waived unless such amendment or waiver is agreed to
in writing, signed by the Executive and by a duly authorized officer of the
Company. No waiver by any party hereto of any breach by another party hereto of
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same time, any prior time or any subsequent time.
19. Notices. Any notice to be given hereunder shall be in writing
-------
and shall be deemed given when delivered personally, sent by courier or telecopy
or registered or certified mail, postage prepaid, return receipt requested,
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice of hereunder in writing:
To the Executive at: Xxxxxxx X. Xxxx
360 Devils Bight
Xxxxxx, Xxxxxxx 00000
To the Company at: Mariner Post-Acute Network, Inc.
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Any notice delivered personally or by courier under this Section 19
shall be deemed given on the date delivered and any notice sent by telecopy or
registered or certified mail, postage prepaid, return receipt requested, shall
be deemed given on the date telecopied or mailed.
16
20. Severability. If any provision of this Agreement or the
------------
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement or the application
of such provision to such person or circumstances other than those to which it
is so determined to be invalid and unenforceable, shall not be affected thereby,
and each provision hereof shall be validated and shall be enforced to the
fullest extent permitted by law.
21. Survivorship. The respective rights and obligations of the
------------
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
22. Governing Law; Attorney's Fees.
------------------------------
(a) This Agreement will be governed by and construed in accordance
with the laws of the State of Georgia, without regard to its conflicts of laws
principles.
(b) The prevailing party in any dispute arising out of this Agreement
shall be entitled to be paid its reasonable attorney's fees incurred in
connection with such dispute from the other party to such dispute.
23 Dispute Resolution. The Executive and the Company shall not
------------------
initiate legal proceedings relating in any way to this Agreement or to the
Executive's employment or termination from employment with the Company until
thirty days after the party against whom the claim is made ("respondent")
receives written notice from the claiming party of the specific nature of any
purported claims and the amount of any purported damages attributable to each
such claim. The Executive and the Company further agree that if respondent
submits the claiming party's claim to the CPR Institute for Dispute Resolution,
JAMS/Endispute, or other local dispute resolution service for nonbinding
mediation prior to the expiration of such thirty day period, the claiming party
may not institute arbitration or other legal proceedings against respondent
until the earlier of: (a) the completion of good-faith mediation efforts or (b)
90 days after the date on which the respondent received written notice of the
claimant's claim(s); provided, however, that nothing in this Section 23 shall
prohibit the Company from pursuing injunctive or other equitable relief against
the Executive prior to, contemporaneous with, or subsequent to invoking or
participating in these dispute resolution processes. The Company shall pay the
cost of the Mediator.
24 Headings. All descriptive headings of sections and paragraphs in
--------
this Agreement are intended solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading of any section or
paragraph.
25 Withholdings. All payments to the Executive under this Agreement
------------
shall be reduced by all applicable withholding required by federal, state or
local tax laws.
17
26 Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MARINER POST-ACUTE NETWORK, INC.
BY:_______________________________________
NAME:_____________________________________
TITLE:____________________________________
THE EXECUTIVE
__________________________________________
Xxxxxxx X. Xxxx
18
APPENDIX A
----------
Value Creation Incentive Plan
Objectives ..................................... Create incentive to maximize cash flow (EBITDA) while optimizing investment in
working capital and capital expenditures.
Term of Plan .................................... Three years -- FYE 9/30/00 through FYE 9/30/02
Baseline EBITDA ................................. To be determined based on operating results during FY99QIV subject to a pro forma
adjustment to reflect a reorganization of MHG such that 100% of MHG's EBITDA is
no longer included in MPN's consolidated EBITDA.
Cash Basis EBITDA ............................... Earnings before depreciation, interest and taxes less increase in accounts
receivable.
New Investment .................................. Excess of capital expenditures and acquisitions over the sum of maintenance
capital expenditures and the proceeds from any divestitures during the Term of
the Plan).
Target ROI ...................................... 15% (Effectively, the Baseline EBITDA is increased by 15% of the amount of New
Investment in the business during the Term of the Plan).
Valuation Multiple .............................. 8x Cash Basis EBITDA
Total Value Created ............................. 8x {FY02 Cash Basis EBITDA-Baseline EBITDA-15% of New Investment
Executive's Share ............................... 2.5% of Total Value Created
Vesting ......................................... One-third of award shall vest on each of 9/30/00, 9/30/01 and 9/30/02 subject to
accelerated vesting of the entire award upon a Change of Control.
Conversion of Plan .............................. Upon mutual agreement of Executive and Company, amounts earned under the Value
Creation Incentive Plan can be converted into employee stock options. It is
anticipated that this would only be considered upon the completion of the
restructuring of MPN's capital structure currently in progress.
19
