EXHIBIT 10.9
THIRD AMENDMENT
TO
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Third Amendment to Amended and Restated Employment Agreement,
dated as of August 1, 2001 (the "Amendment"), is by and between NATIONAL HOME
HEALTH CARE CORP., a Delaware corporation having an address at 000 Xxxxx Xxxxxx
Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Company") and XXXXXXXXX X. XXXXXXX, an
individual having an address at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000
(the "Employee").
WHEREAS, the Company and the Employee are parties to an Amended and
Restated Employment Agreement (the "Agreement"), as amended by a First Amendment
to Amended and Restated Employment Agreement (the "First Amendment"), both dated
as of December 1, 1998, and a Second Amendment to Amended and Restated
Employment Agreement dated as of August 1, 2000 (the "Second Amendment"); and
WHEREAS, the Company and the Employee desire to amend the Agreement in
certain respects.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and conditions hereinafter set forth, the parties hereby agree as
follows:
1. Amendment to the Agreement. The Agreement hereby is amended
effective as of the date hereof such that "five" contained in Section 4(b)
therein is changed to "four."
2. Agreement to Continue as Amended. Except as modified and amended by
the First Amendment and by this Amendment, the Agreement shall remain and
continue in full force and effect after the date hereof.
3. Applicable Law. This Amendment shall be negotiated and the
transactions contemplated hereby consummated and fully performed in the State of
New York and shall be governed by and construed in accordance with the laws of
the State of New York, without regard to the conflicts of law rules thereof.
Nothing contained in this Amendment shall be construed so as to require the
commission of any act contrary to law, and whenever there is any conflict
between any provision of this Amendment and any
statute, law, ordinance, order or regulation, contrary to which the parties
hereto have no legal right to contract, the latter shall prevail, but in such
event any provision of this Amendment so affected shall be curtailed and limited
only to the extent necessary to bring it within the legal requirements.
4. Jurisdiction and Venue. It is hereby irrevocably agreed that all
disputes or controversies between the Company and Employee arising out of, in
connection with or relating to this Amendment shall be exclusively heard,
settled and determined by arbitration to be held in the City of New York, County
of New York, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association to be conducted before a single arbitrator, who shall be
either an attorney or retired judge licensed to practice law in the State of New
York. The parties also agree that judgment may be entered on the arbitrator's
award by any court having jurisdiction thereof and the parties consent to the
jurisdiction of any court located in the City of New York, County of New York
for this purpose.
5. Full Understanding. Employee represents and agrees that he fully
understands his right to discuss all aspects of this Amendment with his private
attorney, that to the extent, if any, that he desired, he availed himself of
this right, that he has carefully read and fully understands all of the
provisions of this Amendment, that he is competent to execute this Amendment,
that his agreement to execute this Amendment has not been obtained by any duress
and that he freely and voluntarily enters into it, and that he has read this
document in its entirety and fully understands the meaning, intent and
consequences of this document which is that it constitutes an agreement of
employment.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
NATIONAL HOME HEALTH CARE CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President of Finance and
Chief Financial Officer
/s/ Xxxxxxxxx X. Xxxxxxx
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XXXXXXXXX X. XXXXXXX
