January 1, 1997
Xx. Xxxxxx X. Xxxxxx
0 Xxxxxx Xxxxxxx Xx., X.X.
Xxxxxxxxxxx, XX 00000
SEVERANCE AGREEMENT
Dear Andy:
The following sets forth our agreement regarding the terms and conditions
that will apply in the event of the termination of your employment as an officer
and employee of Sun Healthcare Group, Inc. (the "COMPANY"). Capitalized words
which are not otherwise defined herein shall have the meanings assigned to such
words in Section 7 of this Agreement.
1. TERM OF THE SEVERANCE AGREEMENT. The term of the severance
protections under this Agreement (the "TERM") shall commence on October 21, 1996
(the "EFFECTIVE DATE") and shall continue so long as you are employed by the
Company. Notwithstanding the foregoing, in the event of a Change in Control
during the Term, the two-year period commencing on the Change in Control Date
shall be referred to herein as the "CHANGE IN CONTROL TERM."
2. EFFECT OF TERMINATION.
(a) INVOLUNTARY TERMINATION.
(i) ACCRUED COMPENSATION AND BENEFITS. In the event of your Involuntary
Termination during the Term or during the Change in Control Term, the Company
shall pay you within 15 days of the date of such Involuntary Termination the
full amount of any earned but unpaid salary through the date of such Involuntary
Termination, plus a cash payment (calculated on the basis of your salary at the
rate then in effect) for all unused paid time off which you may have earned as
of the date of such Involuntary Termination and a cash payment for any
unreimbursed expenses. The Company shall also pay you within 15 days of the
date of such Involuntary Termination, in accordance with current policy, a pro
rata portion of your annual bonus compensation for the year in which your
Involuntary Termination occurs, determined by multiplying the bonus
compensation received by you in the preceding year by a fraction, the numerator
of which shall be the number of calendar
Xx Xxxxxx X. Xxxxxx
Page 2
days in the year in which your Involuntary Termination occurs that precede such
Involuntary Termination, and the denominator of which shall be the total number
of days in such year.
(ii) SEVERANCE PAYMENT. In the event of your Involuntary Termination
during the Term or the Change in Control Term, the Company shall also pay you an
additional amount (the "SEVERANCE PAYMENT") as set forth in either Section
2(a)(ii)(A) or Section 2(a)(ii)(B) below. The Severance Payment shall be in
lieu of any other severance payments which you are entitled to receive under any
other severance pay plan or arrangement sponsored by the Company and its
subsidiaries.
(A) INVOLUNTARY TERMINATION DURING THE TERM. In the event of
your Involuntary Termination during the Term, the Company shall pay you,
within 15 days of the date of such Involuntary Termination, a Severance
Payment equal to two (2) times your salary at the rate then in effect.
Notwithstanding the foregoing, your right to receive the Severance Payment
described in this Section 2(a)(ii)(A) shall be conditioned upon your
execution of a release in favor of the Company, which shall not be
inconsistent with the terms of this Agreement, and which is not revoked by
you within the revocation period specified therein.
(B) INVOLUNTARY TERMINATION ON OR AFTER THE CHANGE IN CONTROL
DATE. In the event of your Involuntary Termination on or after the Change
in Control Date, the Company shall pay you, within 15 days of the date of
such Involuntary Termination, a Severance Payment equal to three (3) times
your salary at the rate then in effect.
(iii) BENEFIT PAYMENT. In the event of your Involuntary Termination, you
and your eligible dependents shall continue to be eligible to participate during
the Benefit Continuation Period (as hereinafter defined) in the medical, dental,
health, life and other fringe benefit plans and arrangements applicable to you
immediately prior to your Involuntary Termination on the same terms and
conditions in effect for you and your dependents immediately prior to such
Involuntary Termination. For purposes of the previous sentence, "BENEFIT
CONTINUATION PERIOD" means the period beginning on the date of such Involuntary
Termination and ending on the earlier to occur of (A) (1) in the event of your
Involuntary Termination during the Term, the second anniversary of the date of
such Involuntary Termination or (2) in the event of your Involuntary Termination
on or after the Change in Control Date, the third anniversary of the date of
such Involuntary Termination, and (B) the date that you and your dependents are
eligible and elect coverage under the plans of a subsequent employer which
provide substantially equivalent or greater benefits to you and your dependents.
(b) OTHER TERMINATIONS. In the event that your employment with the
Company terminates during the Term or the Change in Control Term, other than due
to your Involuntary Termination, the Company shall pay you the full amount of
any earned but unpaid salary through the date of such termination, plus a cash
payment (calculated on the basis of your salary at the rate then in effect) for
all unused paid time off which you may
Xx Xxxxxx X. Xxxxxx
Page 3
have earned as of the date of such termination, you shall immediately
relinquish the right to any additional payments or benefits from the Company
under this Agreement.
(c) NO MITIGATION OR OFFSET. You shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided for in
this Agreement be reduced by any compensation earned by you as the result of
employment by another employer or by pension benefits paid by the Company or
another employer after the date of termination or otherwise except as
specifically provided in clause (B) of the last sentence of Section 2(a)(iii).
3. ADDITIONAL PAYMENTS.
(a) GROSS-UP PAYMENT. Notwithstanding anything herein to the contrary,
if it is determined that any Change in Control Payment would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any interest or
penalties thereon, is herein referred to as an "EXCISE TAX"), then you shall be
entitled to an additional payment (a "GROSS-UP PAYMENT") in an amount that will
place you in the same after-tax economic position that you would have enjoyed if
the Excise Tax had not applied to the Change in Control Payment. The amount of
the Gross-Up Payment shall be determined by the Accounting Firm using such
formula as the Accounting Firm deems appropriate. No Gross-Up Payment shall be
payable hereunder if the Accounting Firm determines that the Change in Control
Payments are not subject to an Excise Tax.
(b) DETERMINATION OF GROSS-UP PAYMENT. Subject to the provisions of
Section 3(c), all determinations required under this Section 3, including
whether a Gross-Up Payment is required, the amount of the Change in Control
Payments constituting excess parachute payments, and the amount of the Gross-Up
Payment, shall be made by the Accounting Firm, which shall provide detailed
supporting calculations both to you and the Company within fifteen days of the
change in the ownership or effective control of the Company or in the ownership
of a substantial portion of the assets of the Company (within the meaning of
such terms under Section 280G of the Code), your date of termination or any
other date reasonably requested by you or the Company on which a determination
under this Section 3 is necessary or advisable. The Company shall pay to you
the initial Gross-Up Payment within 5 days of the receipt by you and the Company
of the Accounting Firm's determination. If the Accounting Firm determines that
no Excise Tax is payable by you, the Company shall cause the Accounting Firm to
provide you and the Company with an opinion that the Company has substantial
authority under the Code and Regulations not to report an Excise Tax on your
federal income tax return. Any determination by the Accounting Firm shall be
binding upon you and the Company. If the initial Gross-Up Payment is
insufficient to cover the amount of the Excise Tax that is ultimately determined
to be owing by you with respect to any Change in Control Payment (hereinafter an
"UNDERPAYMENT"), the Company, after exhausting its remedies under Section 3(c)
below, shall promptly pay to you an additional Gross-Up Payment in respect of
the Underpayment.
Xx Xxxxxx X. Xxxxxx
Page 4
(c) PROCEDURES. You 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 a Gross-Up Payment. Such notice shall be given as soon as
practicable after you know of such claim and shall apprise the Company of the
nature of the claim and the date on which the claim is requested to be paid.
You agree not to pay the claim until the expiration of the thirty-day period
following the date on which you notify the Company, or such shorter period
ending on the date the Taxes with respect to such claim are due (the "NOTICE
PERIOD"). If the Company notifies you in writing prior to the expiration of the
Notice Period that it desires to contest the claim, you shall: (i) give the
Company any information reasonably requested by the Company relating to the
claim, (ii) take such action in connection with the claim as the Company may
reasonably request, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by
the Company and reasonably acceptable to you, (iii) cooperate with the Company
in good faith in contesting the claim, and (iv) permit the Company to
participate in any proceedings relating to the claim. You shall permit the
Company to control all proceedings related to the claim and, at its option,
permit the Company to pursue or forgo any and all administrative appeals,
proceedings, hearings, and conferences with the taxing authority in respect of
such claim. If requested by the Company, you agree either to pay the tax
claimed and xxx for a refund or contest the claim in any permissible manner and
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
you to pay such claim and pursue a refund, the Company shall advance the amount
of such payment to you on an after-tax and interest-free basis (the "ADVANCE").
The Company's control of the contest related to the claim shall be limited to
the issues related to the Gross-Up Payment and you shall be entitled to settle
or contest, as the case may be, any other issues raised by the Internal Revenue
Service or other taxing authority. If the Company does not notify you in
writing prior to the end of the Notice Period of its desire to contest the
claim, the Company shall pay to you an additional Gross-Up Payment in respect of
the excess parachute payments that are the subject of the claim, and you agree
to pay the amount of the Excise Tax that is the subject of the claim to the
applicable taxing authority in accordance with applicable law.
(d) REPAYMENTS. If, after receipt by you of an Advance, you become
entitled to a refund with respect to the claim to which such Advance relates,
you shall pay the Company the amount of the refund (together with any interest
paid or credited thereon after Taxes applicable thereto). If, after receipt by
you of an Advance, a determination is made that you shall not be entitled to any
refund with respect to the claim and the Company does not promptly notify you of
its intent to contest the denial of refund, then the amount of the Advance shall
not be required to be repaid by you and the amount thereof shall offset the
amount of the additional Gross-Up Payment then owing to you.
(e) FURTHER ASSURANCES. The Company shall indemnify you and hold you
harmless, on an after-tax basis, from any costs, expenses, penalties, fines,
interest or other liabilities ("LOSSES") incurred by you with respect to the
exercise by the Company of any of
Xx Xxxxxx X. Xxxxxx
Page 5
its rights under this Section 3, including, without limitation, any Losses
related to the Company's decision to contest a claim or any imputed income to
you resulting from any Advance or action taken on your behalf by the Company
hereunder. The Company shall pay all legal fees and expenses incurred under
this Section 3, and shall promptly reimburse you for the reasonable expenses
incurred by you in connection with any actions taken by the Company or required
to be taken by you hereunder. The Company shall also pay all of the fees and
expenses of the Accounting Firm, including, without limitation, the fees and
expenses related to the opinion referred to in Section 3(b).
4. PROTECTION OF THE COMPANY'S INTERESTS.
(a) NON-COMPETITION COVENANTS. You acknowledge that the services you
render to the Company and its direct and indirect affiliates (collectively,
"Affiliates") are of a special and unusual character with a unique value to the
Company and the Affiliates, the loss of which cannot be adequately compensated
by damages in an action at law. In view of the foregoing, and due to the
confidential information obtained by or disclosed to you and as a material
inducement to the Company to enter into this Agreement and to pay to you the
compensation provided for herein, you covenant and agree with Company that
during the term of your employment by the Company and for a period of two (2)
years after you cease to be employed by the Company for any reason, you will
not, except as otherwise authorized by this Agreement, compete with the Company
or any affiliate of the Company, solicit the business of any patient or customer
of the Company or of any affiliate thereof, or directly or indirectly solicit
for employment any of the employees of the Company or its Affiliates. For
purposes of this Section 4(a):
As used in this Section 4(a), the term "compete" means engaging in any
manner whatsoever in the same or any similar business as the Company or any of
its Affiliates within a geographic area of 50 miles of any office, branch, or
healthcare or other facility of the Company or any of its Affiliates, or any
other location at which the Company or any of its Affiliates provides services
to patients or customers, including, without limitation, as a proprietor,
partner, investor, shareholder, director, officer, employee, consultant,
independent contractor, or otherwise, other than as a passive investor owning
less than a five percent (5%) equity interest in any one entity or enterprise;
As used in this Section 4(a), the term "patients or customers" means all
persons to whom the Company or any of its Affiliates has sold or provided any
product or service, whether or not for compensation, w cease to be employed by
the Company.
The Company and you may, from time to time during the term of this
Agreement, jointly execute an instrument or instruments which set forth
exceptions to the non-competition covenants set forth in this Paragraph.
In the event that any provision of Paragraphs 8 or 9 above relating to time
period or geographical area restrictions shall be declared by a court of
competent jurisdiction to exceed
Xx Xxxxxx X. Xxxxxx
Page 6
the maximum restrictions which the court deems reasonable and enforceable, those
such restrictions as shall be deemed reasonable and enforceable by the court
shall become and thereafter be the maximum restriction in such regard, and such
restriction or restrictions shall remain enforceable to the fullest extent
permitted by such court.
(b) NO INTERFERENCE. During the Restricted Period, you shall not,
whether for your own account or for the account of any other individual,
partnership, firm, corporation or other business organization (other than the
Company), intentionally solicit, endeavor to entice away from the Company, or
otherwise interfere with the relationship of the Company with, any person who is
employed by or otherwise engaged to perform services for the Company or any
person or entity who is, or was within the then most recent twelve-month period,
a customer, client or supplier of the Company.
(c) CONFIDENTIALITY. You hereby covenant and agree that you will not at
any time, except in performance of your obligations to the Company hereunder or
with the prior written consent of the Board, directly or indirectly disclose to
any person any secret or confidential information that you may learn or have
learned by reason of your association with the Company. The term "CONFIDENTIAL
INFORMATION" means any information not previously disclosed to the public or to
the trade by the Company's management with respect to the Company's products,
facilities and methods, trade secrets and other intellectual property, systems,
procedures, manuals, confidential reports, product price lists, customer lists,
financial information (including the revenues, costs or profits associated with
any of the Company's productperty. You hereby confirm that all confidential
information is and shall remain the exclusive property of the Company. All
business records, papers and documents kept or made by you relating to the
business of the Company shall be and remain the property of the Company. Upon
the termination of your employment with the Company for any reason or upon the
request of the Company at any time, you shall promptly deliver to the Company,
and shall not without the consent of the Board retain copies of, any written
materials not previously made available to the public, or records and documents
made by you or coming into your possession concerning the business or affairs of
the Company.
(e) RELIEF. Without intending to limit the remedies available to the
Company, you acknowledge that a breach of any of the covenants contained in this
Section 4 may result in material irreparable injury to the Company for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of such a breach or
threat thereof, the Company shall be entitled to obtain a temporary restraining
order and/or a preliminary or permanent injunction restraining you from engaging
in activities prohibited by this Section 4 or such other relief as may be
required to specifically enforce any of the covenants in this Section 4.
5. LEGAL FEES AND EXPENSES. The Company shall pay or reimburse you on
an after-tax basis for all costs and expenses (including, without limitation,
court costs and reasonable legal fees and expenses which reflect common practice
with respect to the matters involved) incurred by you as a result of any claim,
action or proceeding (i) arising out of
Xx Xxxxxx X. Xxxxxx
Page 7
your termination of employment during the Term or the Change in Control Term,
(ii) contesting, disputing or enforcing any right, benefits or obligations under
this Agreement or (iii) arising out of or challenging the validity, advisability
or enforceability of this Agreement or any provision thereof; PROVIDED, HOWEVER,
that this provision shall not apply if the relevant trier-of-fact determines
that your claim or position was frivolous and without reasonable foundation.
6. SUCCESSORS; BINDING AGREEMENT.
(a) ASSUMPTION BY SUCCESSOR. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company (and may
require any subsidiary of the Company to which you have devoted a substantial
portion of your business time that is being spun off) expressly to assume and to
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; PROVIDED, HOWEVER, that no such assumption shall relieve the Company of
its obligations hereunder. As used in this Agreement, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets (or subsidiary that is spun off in a public offering) as aforesaid, which
assumes and agrees to perform this Agreement by operation of law or otherwise.
(b) ENFORCEABILITY; BENEFICIARIES. This Agreement shall be binding upon
and inure to the benefit of you (and your personal representatives and heirs)
and the Company and any organization which succeeds to substantially all of the
business or assets of the Company, whether by means of merger, consolidation,
acquisition of all or substantially all of the assets of the Company or
otherwise, including, without limitation, as a result of a Change in Control or
by operation of law. This Agreement shall inure to the benefit of and be
enforceable by your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
should die while any amount would still be payable to you hereunder if you had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agrto your estate.
7. DEFINITIONS. For purposes of this Agreement, the following
capitalized words shall have the meanings set forth below:
"ACCOUNTING FIRM" shall mean Xxxxxx Xxxxxxxx LLP, or, if such firm is
unable or unwilling to perform such calculations, such other national accounting
firm as shall be designated by agreement between you and the Company.
"BOARD" shall mean the Board of Directors of the Company.
"CAUSE" shall mean a termination of your employment during the Term which
is a result of (i) your felony conviction, (ii) a determination by the Board
that you have violated any of the protective covenants set forth in Section 4 of
this Agreement or (iii) your
Xx Xxxxxx X. Xxxxxx
Page 8
continued failure substantially to perform the duties reasonably requested by
the Company (other than any such failure resulting from your incapacity due to
physical or mental illness or any such actual or anticipated failure resulting
from a resignation by you for Good Reason) after a written demand for
substantial performance is delivered to you by the Board, which demand
specifically identifies the manner in which the Board believes that you have not
substantially performed your duties, and which performance is not substantially
corrected by you within 10 days of receipt of such demand; PROVIDED, HOWEVER,
that, during the Change in Control Term, any such failure shall not constitute
Cause unless such failure is willful. For purposes of the previous sentence,
no act or failure to act on your part shall be deemed "willful" unless done, or
omitted to be done, by you not in good faith and without reasonable belief that
your action or omission was in the best interest of the Company.
A "CHANGE IN CONTROL" shall be deemed to have occurred if there is a
"change in control" of the Company within the meaning of Section 280G of the
Code and the Regulations; or
(i) any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities and Exchange Act of 1934, as amended
(the "1934 ACT")), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company (an "ACQUIRING
PERSON"), is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of more than 33-1/3% of the
then outstanding voting stock of the Company;
(ii) the shareholders of the Company and a majority of the
non-employee directors of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 66-2/3% of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation;
(iii) the shareholders of the Company approve a plan of
reorganization (other than a reorganization or liquidation under the United
States Bankruptcy Code or complete liquidation of the Company) or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets;
(iv) during any period of two consecutive years (beginning on or
after the Effective Date), individuals who at the beginning of such period
constitute the Board and any new director (other than a director who is a
representative or nominee of an Acquiring Person) whose election by the
Board or nomination for election by the Company's shareholders was approved
by a vote of at least a majority of the directors then still in office who
either were directors at the beginning of the period or whose
Xx Xxxxxx X. Xxxxxx
Page 9
election or nomination for election was previously so approved, no longer
constitute a majority of the Board;
PROVIDED, HOWEVER, that notwithstanding parts (i), (ii), (iii) and (iv) of this
definition, a Change in Control shall not be deemed to have occurred in the
event of
(x) a sale or conveyance in which the Company continues as a
holding company of an entity or entities that conduct the business or
businesses formerly conducted by the Company; or
(y) any transaction undertaken for the purpose of
reincorporating the Company under the laws of another jurisdiction, if such
transaction does not materially affect the beneficial ownership of the
Company's capital stock.
and PROVIDED FURTHER, that notwithstanding anything in this definition to the
contrary, a Change in Control shall not be deemed to have occurred in the event
of any business combination with _________, unless the Board determines
otherwise.
"CHANGE IN CONTROL DATE" shall mean date on which the Change in Control
occurs; PROVIDED, that if your employment with the Company terminates prior to
the Change in Control Date and it is reasonably demonstrated that your
termination of employment (i) was at the request of the third party who has
taken steps reasonably calculated to effect the Change in Control or (ii)
otherwise arose in connection with or in anticipation of the Change in Control,
then Change in Control Date shall mean the date immediately prior to the date of
your termination of employment.
"CHANGE IN CONTROL PAYMENT" means (i) any amount due or paid to you under
this Agreement, (ii) any amount that is due or paid to you under any plan,
program or arrangement of the Company and its subsidiaries (including, without
limitation, the Equity Plans), and (iii) any amount or benefit that is due or
payable to you under this Agreement or under any plan, program or arrangement of
the Company and its subsidiaries not otherwise covered under clause (i) or (ii)
hereof which must reasonably be taken into account under Section 280G of the
Code and the Regulations in determining the amount of the "parachute payments"
received by you, including, without limitation, any amounts which must be taken
into account under the Code and Regulations as a result of (A) the acceleration
of the vesting of any option, restricted stock or other equity award granted
under the Equity Plans or otherwise, (B) the acceleration of the time at which
anyeverance or other amounts that are payable to you.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and any
successor provisions thereto.
"COMMON STOCK" shall mean the common stock of the Company.
Xx Xxxxxx X. Xxxxxx
Page 10
"DISABILITY" shall mean your inability to engage in substantial gainful
activity by reason of any medically determinable mental or physical impairment
which can be expected to result in death or which has lasted or can be expected
to last a continuous period of not less than 12 months.
"EQUITY AWARDS" shall mean options, restricted stock or other grants or
awards which consist of, or relate to, equity securities of the Company and
which have been granted to you under the Equity Plans. For purposes of this
Agreement, Equity Awards shall also include any securities acquired upon the
exercise of an option, warrant or similar right that constitutes an Equity
Award.
"EQUITY PLAN CHANGE IN CONTROL" shall mean a change in control of the
Company as defined in the applicable Equity Plan.
"EQUITY PLANS" shall mean any equity-based incentive plan or arrangement
adopted by the Company.
"GOOD REASON" shall mean a resignation of your employment during the Term
or the Change in Control Term as a result of any of the following:
(i) (A) During the Term, a meaningful and detrimental alteration
in your position or the nature or status of your responsibilities, or a
meaningful and detrimental change in your reporting responsibilities or
titles, as in effect immediately prior to your termination of employment,
or (B) during the Change in Control Term, a meaningful and detrimental
alteration in your position or the nature or status of your
responsibilities, or a meaningful and detrimental change in your reporting
responsibilities or titles, as in effect immediately prior to the Change in
Control Date;
(ii) A reduction by the Company in your annual base salary as in
effect immediately prior to your termination of employment; a reduction in
your target annual bonus (expressed as a percentage of base salary) as in
effect immediately prior to your termination of employment; or a failure by
the Company to provide you with any other form of compensation or benefit
being provided to you immediately prior to your termination of employment;
PROVIDED, THAT, in the event of your resignation following a Change in
Control of the Company, any such reduction in your salary, target annual
bonus or any other form of compensation or benefit from the rate or level
in effect immediately prior to the Change in Control Date shall constitute
Good Reason;
(iii) The relocation of the office of the Company outside of
Albuquerque, New Mexico; or a significant increase in the amount of time
that you are required to travel for business purposes;
Xx Xxxxxx X. Xxxxxx
Page 11
(iv) The failure of the Company to obtain an agreement reasonably
satisfactory to you from any successor to assume and agree to perform this
Agreement, as contemplated in Section 6(a) hereof;
(vii) Any termination of your employment which is not effected
pursuant to the terms of this Agreement; or
(viii) A material breach by the Company of the provisions of this
Agreement;
PROVIDED, HOWEVER, that an event described above in clause (ii) or (viii) shall
not constitute Good Reason unless it is communicated by you to the Company in
writing and is not corrected by the Company in a manner which is reasonably
satisfactory to you (including full retroactive correction with respect to any
monetary matter) within 10 days of the Company's receipt of such written notice
from you.
"INVOLUNTARY TERMINATION" shall mean (i) your termination of employment by
the Company and its subsidiaries during the Term or the Change in Control Term
other than for Cause or Disability or (ii) your resignation of employment with
the Company and its subsidiaries during the Term or the Change in Control Term
for Good Reason.
"REGULATIONS" shall mean the proposed, temporary and final regulations
under Section 280G of the Code or any successor provision thereto.
"TAXES" shall mean the federal, state and local income taxes to which you
are subject at the time of determination, calculated on the basis of the highest
marginal rates then in effect, plus any additional payroll or withholding taxes
to which you are then subject.
8. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
Chief Executive Officer of the Company, with a copy to the General Counsel of
the Company, or to you at the address set forth on the first page of this
Agreement or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
9. MISCELLANEOUS.
(a) AMSCHARGE IS AGREED TO IN WRITING. 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. 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 THIS
Xx Xxxxxx X. Xxxxxx
Page 12
AGREEMENT AND THIS AGREEMENT SHALL SUPERSEDE ALL PRIOR AGREEMENTS, NEGOTIATIONS,
CORRESPONDENCE, UNDERTAKINGS AND COMMUNICATIONS OF THE PARTIES, ORAL OR WRITTEN,
WITH RESPECT TO THE SUBJECT MATTER HEREOF; PROVIDED, HOWEVER, THAT, EXCEPT AS
EXPRESSLY SET FORTH HEREIN, THIS AGREEMENT SHALL NOT SUPERSEDE THE TERMS OF
EQUITY AWARDS PREVIOUSLY GRANTED TO YOU.
(B) VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(c) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
(d) WITHHOLDING. Amounts paid to you hereunder shall be subject to all
applicable federal, state and local withholding taxes.
(e) SOURCE OF PAYMENTS. All payments provided under this Agreement,
other than payments made pursuant to a plan which provides otherwise, shall be
paid in cash from the general funds of the Company, and no special or separate
fund shall be established, and no other segregation of assets made, to assure
payment. You will have no right, title or interest whatsoever in or to any
investments which the Company may make to aid it in meeting its obligations
hereunder. To the extent that an than the right of an unsecured creditor of the
Company.
(f) HEADINGS. The headings contained in this Agreement are intended
solely for convenience of reference and shall not affect the rights of the
parties to this Agreement.
(g) ENTIRE AGREEMENT. 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.
(h) GOVERNING LAW. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State of New
Mexico applicable to contracts entered into and performed in such State.
* * * *
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject.
Sincerely,
Xx Xxxxxx X. Xxxxxx
Page 13
SUN HEALTHCARE GROUP, INC.
By
------------------------------------------
Xxxx X. Xxxxxxxxx
Chairperson, Compensation Committee
Agreed to as of this 1st day of January, 1997.
------------------------------------
Xxxxxx X. Xxxxxx
