EMPLOYMENT AGREEMENT
Exhibit 10.1
This EMPLOYMENT AGREEMENT is made as of the 18th day of December, 2008 by and between Kindred Healthcare, Inc., a Delaware corporation (the “Company”) and Xxxxxx X. Xxxxx (“Xxxxx”).
WITNESSETH:
WHEREAS, Xxxxx is serving as Executive Chairman of the Board and the Company desires to continue the services of Xxxxx in that capacity; and
WHEREAS, the Executive Compensation Committee (the “Executive Compensation Committee”) of the Board of Directors (the “Board”) has determined that it is in the best interests of the Company and its subsidiaries to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the respective covenants and agreements contained herein, and intending to be legally bound hereby, the Company and Xxxxx agree as follows:
1. Employment as Executive Chairman of the Board.
(a) Term. The Company or one of its subsidiaries hereby agrees to employ Xxxxx and Xxxxx hereby agrees to be employed as Executive Chairman of the Board of Directors (“Executive Chairman”) effective on the date hereof on the terms and conditions herein set forth. The term of this Agreement (the “Term”) shall be for a one-year period commencing on the date hereof (the “Effective Date”). The Term shall be automatically extended by one additional day for each day beyond the Effective Date that Xxxxx remains employed by the Company until such time as the Board of Directors elects to cease such extension by giving written notice of such election to Xxxxx. In such an event, the Agreement shall terminate on the first anniversary of the date of such election notice, unless a later date is specified.
(b) Duties. As Executive Chairman, Xxxxx shall perform the following duties: (i) coordinate all Board matters and committee activities and act as the principal liaison between the Board and senior management; (ii) continue his responsibility for public lobbying and relationships with various healthcare related organizations; (iii) advise the chief executive officer and senior management on strategic initiatives including financing, acquisition and development activities; (iv) advise the chief executive officer and senior management concerning all compliance and regulatory matters; and (v) such other similar matters as reasonably requested by the Board.
(c) Extent of Services. Xxxxx, subject to the direction and control of the Board, shall have the power and authority commensurate with his status as
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Executive Chairman and necessary to perform his duties hereunder. During the Chairman Term, Xxxxx shall devote approximately two days a week or 60 hours a month to the business of the Company. With notice to the Board, Xxxxx may engage in any other business activities, whether or not such business activities are pursued for gain, profit or other pecuniary advantage provided such activities do not conflict with the Company’s objectives and operations.
(d) Compensation. As compensation for services rendered as Executive Chairman, Xxxxx shall receive during the Chairman Term:
(i) A salary (“Chairman Salary”) of not less than his current base salary per year payable in equal installments in accordance with the Company’s normal payroll procedures. Xxxxx may receive increases in his Chairman Salary from time to time, as approved by the Executive Compensation Committee.
(ii) Xxxxx may be eligible to receive additional compensation as the Executive Compensation Committee may approve from time to time but is not intended that Xxxxx will continue to participate in the Company’s standard bonus or long-term incentive plans. It is intended that any such additional compensation shall be structured, to the extent necessary, to comply with Section 409A of the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder (the “Code”).
(e) Benefits. During the Term:
(i) Xxxxx shall be entitled to participate in any and all welfare benefit (including, without limitation, medical, dental, disability and group life insurance coverages) and fringe benefit plans from time to time in effect for executives of the Company and its affiliates.
(ii) Xxxxx may incur reasonable expenses for promoting the Company’s business, including expenses for entertainment, travel and similar items. The Company shall reimburse Xxxxx for all such reasonable expenses in accordance with the Company’s reimbursement policies and procedures.
(iii) Xxxxx will continue to vest in his existing stock options, restricted stock and accrued long-term incentive benefits.
(iv) The Company shall provide Xxxxx with an office suite in Houston, Texas and an administrative assistant substantially comparable to his existing office suite and administrative assistant being furnished as of the date of this Agreement.
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2. Termination of Employment.
(a) Death or Disability. Xxxxx’x employment shall terminate automatically upon Xxxxx’x death during the Term. If the Board determines in good faith that the Disability of Xxxxx has occurred during the Term (pursuant to the definition of Disability set forth below) it may give to Xxxxx written notice of its intention to terminate Xxxxx’x employment. In such event, Xxxxx’x employment with the Company shall terminate effective on the 30th day after receipt of such notice by Xxxxx (the “Disability Effective Date”), provided that, within the 30 days after such receipt, Xxxxx shall not have returned to performance of Xxxxx’x duties. For purposes of this Agreement, “Disability” shall mean Xxxxx’x absence from his full-time duties hereunder for a period of 90 days due to disability as defined in the long-term disability plan provided to Xxxxx by the Company.
(b) Cause. The Company may terminate Xxxxx’x employment during the Term for Cause. For purposes of this Agreement, “Cause” shall mean Xxxxx’x (i) conviction of or plea of nolo contendere to a crime involving moral turpitude; or (ii) willful and material breach by Xxxxx of his duties and responsibilities, which is committed in bad faith or without reasonable belief that such breaching conduct is in the best interests of the Company and its affiliates, but with respect to (ii) only if the Board adopts a resolution by a vote of at least 75% of its members so finding after giving Xxxxx and his attorney an opportunity to be heard by the Board and a reasonable opportunity of not less than 30 days to remedy or correct the purported breaching conduct. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Xxxxx in good faith and in the best interests of the Company.
(c) Good Reason. Xxxxx’x employment may be terminated by Xxxxx for Good Reason. “Good Reason” shall exist upon the occurrence, without Xxxxx’x express written consent, of any of the following events:
(i) The Company shall materially reduce the Chairman Salary;
(ii) The Company shall require Xxxxx to relocate Xxxxx’x principal business office more than 30 miles from its location on the date of this Agreement;
(iii) If Xxxxx ceases to be Chairman of the Board, for any reason, including failing to be elected at any annual or special meeting of the shareholders of the Company (which shall be deemed a material adverse change in Xxxxx’x duties and responsibilities); or
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(iv) a material breach by the Company of Section 1(d)(ii), Section 1(e)(i) or Section 5(c) of this Agreement.
For purposes of this Agreement, “Good Reason” shall not exist until after Xxxxx has given the Company notice of the applicable event within 10 days of the initial occurrence of such event and which is not remedied within 10 days after receipt of written notice from Xxxxx specifically delineating such claimed event and setting forth Xxxxx’x intention to terminate employment if not remedied; provided, that if the specified event cannot reasonably be remedied within such 10-day period and the Company commences reasonable steps within such 10-day period to remedy such event and diligently continues such steps thereafter until a remedy is effected, such event shall not constitute “Good Reason” provided that such event is remedied within 30 days after receipt of such written notice.
(d) Retirement. Xxxxx’x employment shall be terminated upon Retirement. For purposes of this Agreement, “Retirement” means an election by either Xxxxx or the Company to terminate this Agreement upon Xxxxx reaching age 65 or anytime thereafter.
(e) Notice of Termination. Any termination by the Company for Cause, by Xxxxx for Good Reason or by either Xxxxx or the Company upon Retirement, shall be communicated by Notice of Termination given in accordance with this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Xxxxx’x employment under the provision so indicated and (iii) specifies the intended termination date (which date, in the case of a termination for Good Reason, shall be not more than 10 days after the giving of such notice). The failure by Xxxxx or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of Xxxxx or the Company, respectively, hereunder or preclude Xxxxx or the Company, respectively, from asserting such fact or circumstance in enforcing Xxxxx’x or the Company’s rights hereunder.
(f) Date of Termination. “Date of Termination” means (i) if Xxxxx’x employment is terminated by the Company for Cause, or by Xxxxx for Good Reason, the later of the date specified in the Notice of Termination or the date that is one day after the last day of any applicable cure period, (ii) if Xxxxx’x employment is terminated by the Company other than for Cause, Disability or Retirement, or Xxxxx resigns without Good Reason (and other than due to Retirement), the Date of Termination shall be the date on which the Company or Xxxxx notified Xxxxx or the Company, respectively, of such termination (iii) if Xxxxx’x employment is terminated by reason of death or Disability, the Date of Termination shall be the date of death of Xxxxx or the Disability Effective Date,
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as the case may be and (iv) if Xxxxx’x employment is terminated by either Xxxxx or the Company upon Retirement, the date specified in the Notice of Termination.
3. Obligations of the Company Upon Termination. Following any termination of Xxxxx’x employment hereunder, the Company shall pay Xxxxx his accrued wages through the Date of Termination and any amounts owed to Xxxxx pursuant to the terms and conditions of the benefit plans and programs of the Company at the time such payments are due. In addition, subject to Section 3(g) hereof, Xxxxx shall be entitled to the following additional payments:
(a) Death or Disability. Xxxxx shall not be entitled to any additional benefits by reason of his death or Disability during the Term.
(b) Good Reason; Other than for Cause. If, during the Term, the Company shall terminate Xxxxx’x employment other than for Cause (but not for Disability or Retirement), or Xxxxx shall terminate his employment for Good Reason:
(i) Within 14 days of Xxxxx’x Date of Termination, the Company shall pay to Xxxxx an amount equal to three times the Chairman Salary as of the Date of Termination.
(ii) For a period of three years following the Date of Termination (the “Benefit Continuation Period”), Xxxxx shall be treated as if he had continued to be an executive for all purposes under the Company’s (or its subsidiary’s) health insurance plan and dental insurance plan; or if Xxxxx is prohibited from participating in such plans, the Company shall otherwise provide such benefits. Xxxxx shall be responsible for any employee contributions for such insurance coverage. Following the Benefit Continuation Period, Xxxxx shall be entitled to receive continuation coverage under Part 6 of Title I of ERISA (“COBRA Benefits”) by treating the end of this period as the applicable qualifying event (i.e., as a termination of employment) for purposes of ERISA Section 603(2)) and with the concurrent loss of coverage occurring on the same date, to the extent allowed by applicable law.
(iii) For the Benefit Continuation Period, the Company shall maintain in force, at its expense, Xxxxx’x life insurance in effect under the Company’s (or its subsidiary’s) life insurance benefit plan as of the Date of Termination. Xxxxx shall be responsible for any employee contributions for such insurance coverage. For purposes of clarification, the portion of the premiums in respect of such voluntary life insurance for which Xxxxx and the Company are responsible, respectively, shall be the same as the portion for which the Company and Xxxxx are responsible, respectively, immediately prior to the Date of Termination.
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(iv) For the Benefit Continuation Period, the Company (or its subsidiary) shall provide short-term and long-term disability insurance benefits to Xxxxx equivalent to the coverage that Xxxxx would have had if he had remained employed under the disability insurance plans applicable to Xxxxx on the Date of Termination. Xxxxx shall be responsible for any employee contributions for such insurance coverage. Should Xxxxx become disabled during such period, Xxxxx shall be entitled to receive such benefits, and for such duration, as the applicable plan provides. For purposes of clarification, the portion of the premiums in respect of such short-term and long-term disability benefits for which Xxxxx and the Company are responsible, respectively, shall be the same as the portion for which Xxxxx and the Company are responsible, respectively, immediately prior to the Date of Termination.
(v) Within fifteen (15) days after the Date of Termination, the Company shall pay to Executive a cash payment in an amount, if any, necessary to compensate Executive for the Executive’s unvested interests under the Company’s (or its subsidiary’s) retirement savings plan which are forfeited by Executive in connection with the termination of Executive’s employment.
(vi) The Company (or its subsidiary) shall adopt such amendments to its benefit plans, if any, as are necessary to effectuate the provisions of this Agreement.
(vii) Any outstanding unvested stock options, stock performance units, restricted stock award or similar equity awards held by Xxxxx on the Date of Termination that would have vested in accordance with their original terms had Xxxxx remained an active employee of the Company for the duration of the Benefit Continuation Period shall immediately vest as of the Date of Termination and all other stock options, stock performance units or other equity awards held by Xxxxx shall be immediately cancelled and forfeited as of the Date of Termination. In addition, Xxxxx shall have the right to continue to exercise any vested stock options (after giving effect to the immediately foregoing sentence) held by Xxxxx during the Benefit Continuation Period; provided that in no event shall Xxxxx be entitled to exercise any such option beyond the original expiration date of such option.
(viii) Following Xxxxx’x Date of Termination, Xxxxx shall receive the computer which Xxxxx is utilizing as of the Date of Termination. In addition, Xxxxx shall be entitled to the furniture in Xxxxx’x office suite as of the Date of Termination. In addition, until the end of the second taxable year following the year in which the Date of Termination occurs, the Company shall provide Xxxxx with an office suite and administrative assistant, each substantially comparable to the office
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suite and administrative assistant that were furnished to Xxxxx as of the Date of Termination.
(c) Cause; Other than for Good Reason. If Xxxxx’x employment shall be terminated for Cause or Xxxxx terminates employment without Good Reason (and other than due to Xxxxx’x death or Retirement) during the Term, this Agreement shall terminate without further additional obligations to Xxxxx under this Agreement.
(d) Retirement. If either Xxxxx or the Company shall terminate this Agreement upon Retirement, Xxxxx shall be entitled to the following:
(i) For the Benefit Continuation Period, Xxxxx shall be treated as if he had continued to be an executive for all purposes under the Company’s (or its subsidiary’s) health insurance plan and dental insurance plan; or if Xxxxx is prohibited from participating in such plans, the Company shall otherwise provide such benefits. Xxxxx shall be responsible for any employee contributions for such insurance coverage.
(ii) All outstanding unvested stock options, stock performance units and restricted stock awards held by Xxxxx as of the Date of Termination shall immediately vest in full and Xxxxx will have an additional one year in which to exercise such stock options; provided that in no event shall Xxxxx be entitled to exercise any such option beyond the original expiration date of such option.
(iii) Following Xxxxx’x Date of Termination, Xxxxx shall receive the computer which Xxxxx is utilizing as of the Date of Termination. In addition, Xxxxx shall be entitled to the furniture in Xxxxx’x office suite as of the Date of Termination. In addition, until the end of the second taxable year following the year in which the Date of Termination occurs, the Company shall provide Xxxxx with an office suite and administrative assistant, each substantially comparable to the office suite and administrative assistant that were furnished to Xxxxx as of the Date of Termination.
(e) Death after Termination. In the event of the death of Xxxxx during the period Xxxxx is receiving payments pursuant to this Agreement, Xxxxx’x designated beneficiary shall be entitled to receive the balance of the payments; or in the event of no designated beneficiary, the remaining payments shall be made to Xxxxx’x estate.
(f) In-Kind Benefits. Notwithstanding anything in this Agreement to the contrary, in no event shall the provision of in-kind benefits pursuant to this Section 3 during any taxable year of Xxxxx affect the provision of in-kind benefits pursuant to this Section 3 in any other taxable year of Xxxxx.
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(g) General Release and Waiver. Notwithstanding anything herein to the contrary, the amounts payable pursuant to this Section 3 are subject to the condition that Xxxxx has delivered to the Company an executed copy of an irrevocable general release of claims in a form satisfactory to the Company within the 60 day period immediately following Xxxxx’x separation from service (the “Release Period”). Any payment that otherwise would be made prior to Xxxxx’x delivery of such executed release pursuant to this Section 3 shall be paid on the first business day following the conclusion of the Release Period; provided that in-kind benefits provided pursuant to subsections (b)(ii), (iii) and (iv) and (d)(i) of this Section 3 shall continue in effect after separation from service pending the execution and delivery of such release for a period not to exceed 60 days; provided further that if such release is not executed and delivered within such 60-day period, Xxxxx shall reimburse the Company for the full cost of coverage during such period.
(h) Six Month Delay for Specified Employees. Notwithstanding anything herein to the contrary, if at the time of Xxxxx’x separation from service Xxxxx is a “specified employee” as defined in Section 409A of the Code and the deferral of the payment payable pursuant to this Section 3(b)(h) is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the payment to which Xxxxx would otherwise be entitled during the first six months following his separation from service shall be deferred and accumulated (without any reduction in such payment ultimately paid to Xxxxx) for a period of six months from the date of separation from service and paid in a lump sum on the first day of the seventh month following such separation from service (or, if earlier, the date of Xxxxx’x death), together with interest during such period at a rate computed by adding 2.00% to the Prime Rate as published in the Money Rates section of the Wall Street Journal, or other equivalent publication if the Wall Street Journal no longer publishes such information, on the first publication date of the Wall Street Journal or equivalent publication after the date of Xxxxx’x separation from service (provided that if more than one such Prime Rate is published on any given day, the highest of such published rates shall be used).
4. Disputes. Any dispute or controversy arising under, out of, or in connection with this Agreement shall, at the election and upon written demand of either party, be finally determined and settled by binding arbitration in the City of Louisville, Kentucky, in accordance with the Labor Arbitration rules and procedures of the American Arbitration Association, and judgment upon the award may be entered in any court having jurisdiction thereof. The Company shall pay all costs of the arbitration and all reasonable attorneys’ and accountants’ fees of Xxxxx in connection therewith, including any litigation to enforce any arbitration award.
5. Successors.
(a) This Agreement is personal to Xxxxx and without the prior written consent of the Company shall not be assignable by Xxxxx otherwise than by will
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or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Xxxxx’x legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.
(c) The Company shall 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, or any business of the Company for which Xxxxx’x services are principally performed, to assume expressly 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. As used this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.
6. Other Severance Benefits. Xxxxx hereby agrees that in consideration for the payments to be received under this Agreement, Xxxxx waives any and all rights to any payments or benefits under any plans, programs, contracts or arrangements of the Company or their respective affiliates that provide for severance payments or benefits upon a termination of employment, other than the Change in Control Severance Agreement between the Company and Xxxxx (the “Severance Agreement”); provided that any payments payable to Xxxxx hereunder shall be offset by any payments payable under the Severance Agreement.
7. Withholding. All payments to be made to Xxxxx hereunder will be subject to all applicable required withholding of taxes.
8. Non-solicitation. During the Term and for a period of one year thereafter (collectively, the “Non-solicitation Period”), Xxxxx shall not directly or indirectly, individually or on behalf of any person other than the Company, aid or endeavor to solicit or induce any of the Company’s or its affiliates’ employees to leave their employment with the Company or such affiliates in order to accept employment with Xxxxx or any other person, corporation, limited liability company, partnership, sole proprietorship or other entity. If the restrictions set forth in this section would otherwise be determined to be invalid or unenforceable by a court of competent jurisdiction, the parties intend and agree that such court shall exercise its discretion in reforming the provisions of this Agreement to the end that Xxxxx will be subject to a non-solicitation covenant which is reasonable under the circumstances and enforceable by the Company. It is agreed that no adequate remedy at law exists for the parties for violation of this section and that this section may be enforced by any equitable remedy, including specific performance and injunction, without limiting the right of the Company to proceed at law to obtain such relief as may be available to it. The running of the Non-solicitation Period shall be tolled for any period of time during which Xxxxx is in violation of any covenant contained herein, for any reason whatsoever.
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9. No Mitigation. Xxxxx shall have no duty to mitigate his damages by seeking other employment and, should Xxxxx actually receive compensation from any such other employment, the payments required hereunder shall not be reduced or offset by any such compensation. Further, the Company’s obligations to make any payments hereunder shall not be subject to or affected by any setoff, counterclaims or defenses which the Company may have against Xxxxx or others.
10. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given when delivered or sent by telephone facsimile transmission, personal or overnight couriers, or registered mail with confirmation or receipt, addressed as follows:
If to Xxxxx:
Xxxxxx X. Xxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
If to Company:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Facsimile: 000-000-0000
11. Assignment to Subsidiary. The Company may assign its obligations under this Agreement to one or more of its subsidiaries but such assignment will not relieve the Company of its obligations and liabilities hereunder.
12. Waiver of Breach and Severability. The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by either party. In the event any provision of this Agreement is found to be invalid or unenforceable, it may be severed from the Agreement and the remaining provisions of the Agreement shall continue to be binding and effective.
13. Entire Agreement; Amendment. This instrument contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements (including the Employment Agreement dated February 22, 2007 between the Company and Xxxxx), promises, covenants, arrangements, communications, representations and warranties between them, whether written or oral with respect to the subject matter hereof. No provisions of this Agreement may be modified, waived or discharged unless such modification, waiver or discharge is agreed to in writing signed by Xxxxx and such officer of the Company specifically designated by the Board.
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14. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware.
15. Headings. The headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.
16. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
17. Section 409A. If any provision of this Agreement (or any award of compensation or benefits provided under this Agreement) would cause Xxxxx to incur any additional tax or interest under Section 409A of the Code, the Company shall reform such provision to comply with 409A and agrees to maintain, to the maximum extent practicable without violating 409A of the Code, the original intent and economic benefit to Xxxxx of the applicable provision; provided that nothing herein shall require the Company to provide Xxxxx with any gross-up for any tax, interest or penalty incurred by Xxxxx under Section 409A of the Code. Furthermore, notwithstanding anything herein to the contrary, no payment or benefit payable under this Agreement shall be required to be paid or provided in calendar year 2008 if the payment of such payment or benefit would constitute an impermissible acceleration under Section 409A of the Code and the transition guidance thereunder and such payment shall instead be paid on January 1, 2009, without interest.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| KINDRED HEALTHCARE, INC. | ||
| By: | /s/ Xxxx X. Xxxx | |
| Xxxx X. Xxxx, | ||
| President and Chief Executive Officer | ||
| /s/ XXXXXX X. XXXXX | ||
| XXXXXX X. XXXXX | ||
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