Amendment No. 3 to EMPLOYMENT AGREEMENT
EXHIBIT
10.5
Amendment
No. 3
to
THIS
AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT (“Agreement”) effective as of March 31,
2008, by and between Xxxxxxx Xxxxxx (“Executive”) and Sun Healthcare Group,
Inc., a Delaware corporation (“Sun”);
WHEREAS,
Sun and Executive entered into an Employment Agreement dated as of March 22,
2005, and amended such Employment Agreement effective as of October 12, 2006 and
October 31, 2007 (as so amended, the “Employment Agreement”), and they desire to
amend the Employment Agreement with respect to the terms and conditions of
Executive’s 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, Executive and Sun 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, Executive 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; 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 Executive.
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,
Executive must be employed by Sun 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 Sun’s ability to deduct such
Bonus.
|
|
|
(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 and the same
instrument.
|
The parties hereto have executed this
Agreement as of the date first above written.
|
/s/
Xxxxxxx Xxxxxx
|
March
31, 2008
|
|
Xxxxxxx
Xxxxxx
|
Date
|
|
SUN
HEALTHCARE GROUP, INC.
|
|
|
By
/s/ Xxxxxxx Xxxxxx
|
March
31, 2008
|
|
Its
Chairman and Chief Executive Officer
|
Date
|
