EXHIBIT 10(ix)
EMPLOYMENT AGREEMENT WITH XXXXX PASSANISSI
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into effective
January 2, 2003, by and between U.S. West Homes, Inc., a Nevada corporation,
(the Company} and its subsidiary, Noble Concepts Fidelity, Inc., a Nevada
corporation (the "Noble"), and Xxxxx Passanissi (the "Executive").
WHEREAS the Company desires to employ the Executive effective as of
January 2, 2003 (the "Effective Date"), and the Executive desires to accept
employment with the Company, on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing recital and the
respective covenants and agreements of the parties contained in this document,
the Company and the Executive agree as follows:
1. EMPLOYMENT AND DUTIES. The Executive will serve as General Manager
of the manufacturing operations of the Company. The duties and responsibilities
of the Executive shall include the duties and responsibilities as set forth in
the Company's Bylaws from time to time in effect and such other duties and
responsibilities as the board of directors of the Company (the "Board of
Directors") may from time to time reasonably assign the Executive, in all cases
to be consistent with the Executive's corporate offices and positions. The
Executive shall also serve as an officer and/or director of affiliates of the
Company, without additional compensation, if requested to do so by the Company.
The Executive shall devote his full time to the business of the Company and
shall faithfully perform the executive duties assigned to him to the best of his
ability but may devote reasonable time to other business affairs (not in
conflict with the business of the Company) as otherwise provided in paragraph 10
of this Agreement.
2. EMPLOYMENT PERIOD.
a. TERM. Executive's employment shall be for a period of five (5) years.
b. INVOLUNTARY TERMINATION WITH CAUSE. The Company may terminate the Executive's
employment for Cause by providing the Executive notice in writing. For all
purposes under this Agreement, "Cause" shall mean (i) willful failure by the
Executive to perform his duties hereunder, other than a failure resulting from
the Executive's complete or partial incapacity due to physical or mental illness
or impairment, (ii) gross negligence by the Executive in performing his duties
hereunder, other than negligence resulting from the Executive's complete or
partial incapacity due to physical or mental illness or impairment, (iii) a
willful act by the Executive which constitutes gross misconduct and which is
injurious to the Company, (iv) a willful violation of a federal or state law or
regulation applicable to the business of the Company. No act or failure to act
by the Executive shall be considered "willful" unless committed without good
faith and without a reasonable belief that the act or omission was in the
Company's best interest. The determination of Cause hereunder shall be made by a
majority of the Company's disinterested Board of Directors. No Severance Pay as
defined in paragraph 11(a)(i) will be paid to the Executive under this Agreement
in the event of a termination for Cause. Executive's rights under any applicable
benefit plans of the Company shall be determined under the provisions of those
plans. c. DEATH. The Executive's employment will terminate in the event of his
death.
3. PLACE OF EMPLOYMENT. The Executive's services shall be performed at
the Noble's principal executive offices in San Diego, California and the
Executive understands that he is expected to travel extensively in carrying out
his duties with the Company and for Noble.
4. BASE SALARY. For all services to be rendered by the Executive
pursuant to this Agreement the Executive shall receive a base salary of
$1,661.20 per week plus benefits as follows:
a. A medical and dental plan through Xxxxxx Permanente or such other hospital
and or benefits plan currently made available by the Company from time to time
during the period of this Agreement with all premiums paid by the Company for
the Executive and his family up to $216 per month with reasonable increases from
year to year as may be set and required by the insurer as more particularly set
forth hereinbelow in Paragraph 7 hereof;
b. 6 paid holidays per year and four weeks of paid vacation annually as more
particularly set forth hereinbelow in Paragraph 8 hereof.
5. BONUS. For each fiscal year during Executive's employment with the
Company under this Agreement, the Executive will be eligible to receive an
annual bonus (the "Bonus") based upon an Executive Incentive Compensation Plan
(the "Plan") to be developed by executive management of the Company and approved
and adopted by the Board of Directors, which said bonus shall be no less than
10% of the net earnings of the Company at the end of each fiscal year without
including in the net earnings calculation payments of interest and depreciation,
provided however, that there must be net earnings in order to pay any bonus as
defined hereunder and in the event the Company should suffer a loss, then no
bonus shall be paid hereunder. Additionally, the Executive shall be eligible to
receive a share of any stock options under the terms of any Stock Option Plan
which the Board of Directors or the shareholders may authorized during the
course of the employment of the Executive. In the event the Executive's
employment is terminated by the Company, as described in paragraph 11(a)(i),
then the Executive shall be entitled to receive a portion of the Bonus, as
provided under paragraph 11((b).
Additionally, as a condition to the Executive agreeing to become an
executive of the Company, the Board of Directors has authorized the payment in
stock in U.S. West Homes in lieu of a cash bonus payment to be made as a one
time bonus payment on February 1, 2003 generally the number of shares of stock
to be issued of common stock in the Company in a sufficient number of shares of
the said stock not to exceed a total of 10% of the outstanding shares in the
Company as of said date and that the said stock shall be registered on Form S-8
at the expense of the Company.
Furthermore, upon the payment of the 10% bonus as hereinabove defined,
then the Executive shall further receive in addition to the cash bonus an
additional 2% issuance of common stock in the Company in a sufficient number of
shares of the said stock to grant to the Executive a total of 7% of the
outstanding shares in the Company as of the end of the second fiscal year of
this Agreement and additional 2% annual payments each year for the duration of
this Agreement until at the time of termination hereof, the Executive would have
a total of 13% of the outstanding shares in the Company, provided there are
bonus payments in each year of this Agreement.
6. EXPENSES. The Executive shall be entitled to reimbursement by the
Company for Executive's reasonable expenses for room, board and transportation
and for all reasonable, ordinary and necessary travel, entertainment and other
expenses incurred by the Executive during the term of this Agreement
(in accordance with the policies and procedures established by the Company for
its senior executive officers) in the performance of his duties and
responsibilities under this Agreement; provided, however, that the Executive
shall properly account for such expenses in accordance with the Company's
policies and procedures.
7. BENEFITS. The Executive shall be entitled to participate in employee
benefit plans or programs of the Company, if any, to the extent that his
position, tenure, salary, age, health and other qualifications make him eligible
to participate, subject to the rules and regulations applicable thereto. In
addition, the Executive will be entitled to receive an annual physical
examination at Company's expense, or at the Company's request, will take a
physical examination annually and provide the results to the Board of Directors.
8. VACATIONS AND HOLIDAYS. In accordance with the Company's policies in
effect from time to time, the Executive shall be entitled to paid vacation time
in the amount of four weeks per year, prorated for each complete month of
service, and Company holidays. Executive's right to carryover accrued unused
vacation shall be governed by the Company's policy then in effect.
9. INDEMNIFICATION. The Company shall enter into an Indemnification
Agreement with the Executive that shall provide the Executive in substantially
the same form as that attached hereto as Exhibit A and incorporated herein by
this reference with the maximum amount of protection allowed under the laws of
Nevada to the extent that such protection is not inconsistent with the Company's
Certificate of Incorporation or Bylaws with respect to such subject matter.
10. OTHER ACTIVITIES. The Executive shall devote substantially all of
his working time and efforts during the Company's normal business hours to the
business and affairs of the Company and to the diligent and faithful performance
of the duties and
responsibilities duly assigned to him pursuant to this Agreement, except for
vacations, holidays and sickness. The Executive may, however, devote a
reasonable amount of his time, in general after the regular business hours of
the Company, to civic, community or charitable activities and, with the prior
written approval of the Board of Directors, to serve as a director of other
corporations and other types of businesses or public activities not expressly
mentioned in this paragraph.
11. TERMINATION BENEFITS. In the event the Executive's employment
terminates, then the Executive shall be entitled to receive Severance Pay, if
any, and other benefits as follows:
x. XXXXXXXXX.
(i) INVOLUNTARY TERMINATION WITHOUT CAUSE. If the Company terminates
the Executive's employment other than for Cause, or Executive's death or
disability, then Executive shall be entitled to retain all benefits then due him
including his stock interest in the Company. Additionally, the Executive shall
be entitled to receive two weeks of base salary for every year since the
execution hereof ("Severance Pay"), which Severance Pay shall be paid to
Executive in accordance with the Company's regular payroll practices; subject to
Executive signing, delivering and abiding by a Separation Agreement and Release,
substantially in the form attached hereto as Exhibit B and incorporated herein
by this reference; and provided, however, that even if Executive satisfies the
foregoing condition precedent to receipt of Severance Pay, the Company's
obligations hereunder shall cease upon a breach by the Executive of his
obligations under paragraphs 12, 14 and 16 hereof.
(ii) OTHER TERMINATION. In the event the Executive's employment
terminates for Cause or due to Executive's death or disability or Executive's
voluntary resignation, then the Executive shall not be entitled to receive any
Severance Pay or any other benefits, except as may be provided in the Company's
severance and benefit plans and policies at the time of such termination,
providing however, that the Executive shall be entitled to receive any and all
compensation to which he is otherwise entitled and any stock options which may
have vested prior to the termination date.
b. BONUSES. In the event the Executive's employment is terminated by
the Company as described in paragraph 11(a)(i) above, then the Executive shall
be entitled to receive a portion of the Bonus, computed under the Company's
Executive Incentive Compensation Plan referred to in paragraph 5, which Bonus
will be determined, after the end of the fiscal year, by multiplying the amount
of the Bonus which would have become payable to the Executive had he remained
employed until the end of the fiscal year, by a fraction, the numerator of which
will be the number of days the Executive was employed by the Company in such
fiscal year, and the denominator of which shall be the number of days in the
fiscal year. In the event the Executive's employment terminates for any other
reason, then the Executive shall not be entitled to any Bonus which has not
accrued as of such date.
12. PROPRIETARY INFORMATION. The Executive shall not, without the prior
written consent of the Company, disclose or use for any purpose (except in the
course of his employment under this Agreement and in furtherance of the business
of the Company) any confidential information or proprietary data of the Company.
As an express condition of the Executive's employment with the Company, the
Executive agrees to execute confidentiality agreements as requested by the
Company, including but not limited to, the Company's standard form of employee
proprietary information agreement, a form of which is attached hereto as Exhibit
C and incorporated herein by this reference.
13. ABSENCE OF CONFLICT. The Executive represents and warrants that his
employment by the Company as described herein shall not conflict with and will
not be constrained by any prior employment or consulting agreement or
relationship.
14. ARBITRATION. Except as provided in paragraph 16(b)(1) any dispute
or controversy of any kind arising under or in connection with this Agreement
shall be settled exclusively by binding arbitration in Portland, Oregon, in
accordance with the rules of the American Arbitration Association then in effect
by an arbitrator selected by both parties within ten (10) days after either
party has notified the other in writing that it desires a dispute between them
to be settled by arbitration. In the event the parties cannot agree on such
arbitrator within such ten (10) day period, each party shall select an
arbitrator and inform the other party in writing of such arbitrator's name and
address within five (5) days after the end of such ten (10) day period and the
two arbitrators so selected shall select a third arbitrator within fifteen (15)
days thereafter; provided, however, that in the event of a failure by either
party to select an arbitrator and notify the other party of such selection
within the time period provided above, the arbitrator selected by the other
party shall be the sole arbitrator of the dispute. Each party shall pay his or
its own attorneys fee and expenses associated with such arbitration, including
the expense of any arbitrator selected by such party and the Company will pay
the expenses of the jointly selected arbitrator. The decision of the arbitrator
or a majority of the panel of arbitrators shall be binding upon the parties and
judgment in accordance with that decision may be entered in any court having
jurisdiction there over. Punitive damages shall not be awarded.
BY AGREEING TO SUBMIT A DISPUTE OR CONTROVERSY TO ARBITRATION, THE PARTIES
UNDERSTAND THAT THEY WILL NOT ENJOY THE BENEFITS OF A JURY TRIAL. ACCORDINGLY,
THE PARTIES HERETO EXPRESSLY AGREE TO WAIVE THE RIGHT TO A JURY TRIAL.
15. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California as applied to agreements
between California residents entered and to be performed entirely within
California.
16. CERTAIN COVENANTS OF THE EXECUTIVE.
(a) COVENANTS AGAINST COMPETITION. The Executive acknowledges that (i)
the principal business of the Company and its affiliates involves the operation
of free-standing assisted living residences, primarily located in
small-to-middle market rural and suburban communities, the provision of personal
care and support services to meet the needs of its residents, and other related
businesses which the Company and its affiliates currently operate and which the
Company and its affiliates may become involved with during the Executive's
employment under this Agreement (collectively, the "Company Business"); (ii) the
Company Business is national in scope; (iii) the Executive's work for the
Company will bring him into close contact with many confidential affairs not
readily available to the public; and (iv) the Company would not enter into this
Agreement but for the agreements and covenants of the Executive contained
herein. In order to induce the Company to enter into this Employment Agreement,
the Executive covenants and agrees that:
(1) NON-COMPETE. During the time Executive is employed under this
Agreement and for a period of six (6) months following the termination (whether
for cause of otherwise) of the Executive's employment with the Company or any of
its affiliates (the "Restricted Period"), the Executive shall not, in the United
States of America or in any foreign country, directly or indirectly, (i) engage
in the Company Business for his own account; (ii) enter the employ of, or render
any services to, any persons engaged in such activities; or (iii) become
interested in any person engaged in the Company Business, directly or
indirectly, as an individual, partner, shareholder, officer, director,
principal, agent, employee, trustee, consultant or in any other relationship or
capacity; provided, however, that the Executive may own, directly or indirectly,
solely as an investment, securities of any person which are traded on any
national securities exchange or NASDAQ if the Executive (a) is not a controlling
person of, or a member of a group which controls such person or (b) does not,
directly or indirectly, own 1% or more of any class of securities of such
person.
(2) CONFIDENTIAL INFORMATION. During and after the Restricted Period,
the Executive shall keep secret and retain in strictest confidence, and shall
not use for the benefit of himself or others except in connection with the
business and affairs of the Company, all confidential matters of the Company and
its affiliates. Such confidential matters include, without limitation, trade
secrets, customer lists, subscription lists, details of consultant contracts,
pricing policies, operational methods, marketing plans or strategies, product
development techniques or plans, business acquisition plans, new personnel
acquisition plans, designs and design projects, inventions and research projects
of the Company and its affiliates, learned by the Executive heretofore or
hereafter that are sufficiently secret to have the possibility, whether or not
realized, of deriving economic value from not being generally known to other
persons who can obtain economic value from their disclosure or use, and the
Executive shall not disclose them to anyone outside of the Company and its
affiliates, either during or after employment, by the Company or any of its
affiliates, except as required in the course of performing duties hereunder or
with the Company's express written consent. The Executive's obligations pursuant
to this Employment Agreement shall not extend to matters which are within the
public domain or hereafter enter the public domain through no fault or action or
failure to act, whether directly or indirectly, on the part of the Executive.
(3) PROPERTY OF THE COMPANY. All memoranda, notes, lists, records and
other documents (and all copies thereof) made or compiled by the Executive or
made available to the Executive concerning the business of the Company or any of
its affiliates shall be the Company's property and shall be delivered to the
Company promptly upon the termination of the Executive's employment with the
Company or any of its affiliates or at any other time on request.
(4) EMPLOYEES OF THE COMPANY. During the Restricted Period, the
Executive shall not, directly or indirectly, hire, solicit or encourage to leave
the employment of the Company or any of its affiliates, any employee of the
Company or its affiliates or hire any such employee who has left the employment
of the Company or any of its affiliates within six (6) months of the termination
of such employee's employment with the Company or any of its affiliates.
(5) CONSULTANTS AND INDEPENDENT CONTRACTORS OF THE COMPANY. During the
Restricted Period, the Executive shall not, directly or indirectly, hire,
solicit or encourage to cease to work with the Company or any of its affiliates,
any consultant, sales representative or other person then under contract with
the Company or any of its affiliates.
(b) RIGHTS AND REMEDIES UPON BREACH. If the Executive breaches,
or threatens to commit a breach of, any of the provisions of Section 16(a) (the
"Restrictive Covenants"), the Company shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity.
(1) SPECIFIC PERFORMANCE. The right and remedy to have the Restrictive
Covenants specifically enforced by any court having equity jurisdiction, it
being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and its
affiliates and that money damages will not provide an adequate remedy to the
Company. The Parties further agree that the Company's claim for specific
performance shall not be a claim which is covered by the parties' agreement to
arbitrate as set forth in paragraph 15.
(2) ACCOUNTING. The right and remedy to require the Executive to
account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits (collectively, "Benefits") derived or
received by the Executive as a result of any transactions constituting a breach
of any of the Restrictive Covenants, and the Executive shall account for and pay
over such Benefits to the Company.
(c) SEVERABILITY OF COVENANTS. If any court determines that any of the
Restrictive Covenants, or any parts thereof, are invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portions.
(d) "BLUE-PENCILING". If any court construes any of the Restrictive
Covenants, or any part thereof, to be unenforceable because of the duration of
such provision or the area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
(e) ENFORCEABILITY IN JURISDICTIONS. The parties intend to and
hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts
of any jurisdiction within the geographical scope of such Restrictive Covenants.
If the courts of any one or more of such jurisdictions hold the Restrictive
Covenants wholly unenforceable by reason of the breadth of such scope or
otherwise, it is the intention of the parties that such determination not bar or
in any way affect the Company's right to the relief provided above in the courts
of any other jurisdiction within the geographical scope of such Restrictive
Covenants, as to breaches of such Restrictive Covenants in such other respective
jurisdictions, such Restrictive Covenants as they relate to each jurisdiction
being, for this purpose, severable into diverse and independent covenants.
17. SUCCESSORS. 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. Failure of the Company to obtain such assumption agreement
prior to the effectiveness of any such succession shall entitle the Executive to
the Severance Pay described in paragraph 11(a)(i), subject to the terms and
conditions therein.
18. ASSIGNMENT. This Agreement and all rights under this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective personal or legal representatives,
executors, administrators, heirs, distributees, devisees, legatees, successors
and assigns. This Agreement is personal in nature, and, except as provided in
paragraph 18 hereof, neither of the parties to this Agreement shall, without the
written consent of the other, assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. If the Executive
should die while any amounts are still payable to the Executive hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
19. NOTICES. For purposes of this Agreement, notices and other
communications provided for in this Agreement shall be in writing and shall be
delivered personally or sent by United States certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxx Passanissi
000 Xxxxxxx Xxx.
Xx Xxxxx, XX 00000
If to the Company: Xxxxx X. Xxxxx
President
000 Xxxxxxxx, 0xx Xxxxx
Xxxxxx Xxxxx, XX 00000
or to such other address or the attention of such other person as the recipient
party has previously furnished to the other party in writing in accordance with
this paragraph. Such notices or other communications shall be effective upon
delivery or, if earlier, three (3) days after they have been mailed as provided
above.
20. WAIVER. Failure or delay on the part of either party hereto to
enforce any right, power or privilege hereunder shall not be deemed to
constitute a waiver thereof. Additionally, a waiver by either party of a breach
of any promise hereof by the other party shall not operate as or be construed to
constitute a waiver of any subsequent breach by such other party.
21. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective, valid and enforceable
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
22. RIGHT TO ADVICE OF COUNSEL. The Executive acknowledges that he has
consulted with counsel and is fully aware of his rights and obligations under
this Agreement.
23. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, none of which need contain the signature of more than one party
hereto, and each of which shall be deemed to be an original, and all of which
together shall constitute a single agreement,
24. FACSIMILE TRANSMISSION AND SIGNATURES. Facsimile transmission of
any signed original document, and retransmission of any signed facsimile
transmission, shall be the same as delivery of an original document. At the
request of either party, the parties will confirm facsimile transmitted
signatures by signing an original documents.
25. INTEGRATION. This Agreement represents the final and entire
agreement and understanding between the parties as to the subject matter hereof
and supersedes all prior or contemporaneous agreements whether written or oral.
No waiver, alteration or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by duly authorized representatives
of the parties hereto.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, on the day set opposite
its name below.
Noble Concepts Fidelity, Inc. U.S. West Homes, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------- --------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
President President
Executive
/s/ Xxxxx Passanissi
----------------------------------
Xxxxx Passanissi
EXHIBIT A
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made and entered into as of the day
of December 5, 2002 by and between Xxxxx Passanissi ("Indemnitee") and U.S. West
Homes, Inc. a Nevada corporation and its affiliates (collectively,
the "Company").
RECITALS
A. The Company has recognized the difficulty that publicly held
corporations are having in attracting and retaining qualified directors,
officers and key employees as a result of the increasing risk of claims and
actions against them arising out of their association with the Company.
B. Indemnitee is an officer, director and/or key employee of the
Company.
C. Indemnitee is willing to serve, to continue to serve and to take on
additional service for or on behalf of the Company.
D. In view of the mutual desire of the parties that Indemnitee render
valuable services to the Company, the parties have agreed to enter into this
Indemnification Agreement.
THEREFORE IT IS AGREED:
1. Definitions. The following definitions shall apply to this Agreement:
1.1 "Act" shall be the Nevada Corporation Act, NRS Sections
78.010-.795, and all amendments thereto hereinafter enacted.
1.2 "Expenses" shall include, without limitation, expenses of
investigations, judicial or administrative proceedings or appeals and attorneys'
fees and disbursements and any expenses of establishing a right to
indemnification under this Agreement.
1.3 "Liability" means the obligation to pay a judgment,
settlement, penalty, fine, including an excise tax assessed with respect to an
employee benefit plan, or reasonable Expenses incurred with respect to a
Proceeding.
1.4 "Party" includes an individual who was, is or is threatened
to be made a named defendant or respondent in a proceeding.
1.5 "Proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal.
2. Indemnification. The Company shall indemnify Indemnitee against
Liability and Expenses actually and necessarily incurred by him or her in any
Proceeding in which he or she is made a Party by reason of being or having been
a director, officer or key employee of the Company, except in relation to
matters as to which indemnification is prohibited by the Act; but such
indemnification shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under any bylaw or agreement of the Company, general
or specific action of the Company's board of directors, vote of the Company's
shareholders or otherwise.
3. Procedure for Indemnification. After the final disposition of any
Proceeding in which Indemnitee may be entitled to indemnification pursuant to
this Agreement, Indemnitee may send to the Company a written request for
indemnification. The Company shall, in accordance with the provisions of the Act
regarding determination and authorization of indemnification, make a finding
whether the indemnification requested is permitted by the laws of the state of
Nevada no later than 60 days following receipt by the Company of such request.
The Company shall cause the indemnification requested to be authorized and paid
unless the Company finds that the indemnification requested is not so permitted.
Indemnitee shall be given an opportunity to be heard and to present evidence in
connection with the consideration of the party or parties determining
Indemnitee's right to indemnification under the Act. If the Company does not
authorize indemnification hereunder, Indemnitee shall have the right to seek
court-ordered indemnification in accordance with the provisions of the Act. In
any such action, neither the making of, nor the failure to make, any finding by
the Company that indemnification of the Indemnitee is proper or not proper in
the circumstances shall be a defense to such action or create a presumption that
the Indemnitee has not met the standard of conduct required by the Act. In
making its determination and in any court proceeding, the Company shall have the
burden of proving that Indemnitee has not met the standard of conduct required
by the Act to entitle Indemnitee to indemnification.
4. Procedure for Advancement of Expenses. The Company shall pay for or
reimburse the reasonable Expenses incurred by Indemnitee as a result of being
Party to a Proceeding in advance of final disposition of the Proceeding promptly
upon receipt of a written request for payment of such Expenses that is in
accordance with the requirements of the Act for such written statements. Such
written statement shall also include or be accompanied by documentation of the
Expenses incurred certified true and correct by Indemnitee. When available, such
documentation of expenses shall include copies of bills or statements evidencing
the Expenses incurred. If the requirements of this Section 4 are met, the
Company shall pay the amount requested promptly notwithstanding the absence of a
final disposition of the Proceeding.
5. Partial Indemnity. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of the
Expenses or Liability incurred by Indemnitee in the preparation, investigation,
defense, appeal or settlement of any Proceeding but not, however, for the total
amount thereof, the Company shall indemnify Indemnitee for the portion of such
Expenses or Liability to which Indemnitee is entitled in accordance with this
Agreement.
6. Insurance. The Company may, but shall not be required to, purchase
and keep in force during the term of this Agreement a policy or policies of
liability insurance on behalf of Indemnitee against Liability and Expenses
incurred in any Proceeding. Nothing herein shall be construed to prohibit
Indemnitee from maintaining his or her own policy of liability insurance.
7. Exclusions. The Company shall not be liable to make any payment
hereunder:
7.1 If it shall be finally adjudicated that such payment is
prohibited by law;
7.2 On account of any Proceeding brought under Section 16(b) of
the Securities Exchange Act of 1934, as such law is amended from time to time,
or under any similar law that replaces Section 16(b), in which judgment is
rendered against Indemnitee for an accounting for profits made from the purchase
or sale by Indemnitee of the securities of the Company;
7.3 For Liability or Expenses in any Proceeding brought by
Indemnitee against the Company unless (i) the Proceeding is brought as a
Proceeding for indemnity under this Agreement, (ii) Indemnitee is successful in
whole or in part in a Proceeding or (iii) the indemnification is included in a
settlement of the Proceeding or is awarded by a court;
7.4 To the extent payment is actually made to Indemnitee under a
valid, enforceable and collectible insurance policy, whether provided by the
Company or by Indemnitee (the "Insurance Policy"), by or out of a fund created
by the Company and under the control of a trustee or otherwise (the "Fund") or
from other sources provided by the Company ("Other Sources"); or
7.5 For amounts paid in settlement of a claim effected without
the Company's prior written consent, which consent shall not be unreasonably
withheld.
If Indemnitee shall become obligated or required to pay any amount that the
Company would be obligated to pay hereunder except for the exclusion in Section
7.4, the Company shall advance such amount to Indemnitee if payment is not
reasonably expected to be made under the Insurance Policy, by the Fund or from
Other Sources prior to the time that Indemnitee must make such payment,
provided, however, that Indemnitee shall immediately pay over to the Company,
from the funds Indemnitee later receives under the Insurance Policy, from the
Fund or from Other Sources, an amount equal to the amount advanced.
8. Defense of Claim. If any Proceeding asserted or commenced against
Indemnitee is also asserted or commenced against the Company, the Company shall
be entitled to participate in the Proceeding at its own expense and, except as
otherwise provided herein below, to the extent that it may wish the Company
shall be entitled to assume the defense thereof. After notice from the Company
to Indemnitee of its election to assume the defense of any such Proceeding,
Indemnitee shall have the right to employ Indemnitee's own counsel in such
Proceeding, but the Expenses of such counsel incurred after notice from the
Company to Indemnitee of its assumption of the defense thereof shall be the
Expenses of Indemnitee, and the Company may not be obligated to Indemnitee under
this Agreement for any Expenses subsequently incurred by Indemnitee in
connection therewith other than the reasonable costs of investigation, travel
and lodging Expenses arising out of Indemnitee's participation in the defense of
such Proceeding unless (i) otherwise authorized by the Company, (ii)
Indemnitee's counsel shall have reasonably concluded, and so notified the
Company in writing, that there may be a conflict of interest between the Company
and Indemnitee in the conduct of the defense of such Proceeding or (iii) the
Company shall not in fact have employed counsel to assume the defense of such
Proceeding. If the Company may be obligated for some or all of the Expenses of
Indemnitee under this Section 8, the determination of Indemnitee's entitlement
to indemnification shall be made in accordance with Section 3.
9. Change in Control.
9.1 The Company agrees that, if there is a Change in Control (as
hereinafter defined) of the Company, then with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnification and Expense
advances under this Agreement, the Company shall seek legal advice only from
special, independent counsel selected by the Company with the consent of
Indemnitee, which consent shall not be unreasonably withheld, with respect to
matters arising out of this Agreement, including but not limited to the right of
Indemnitee to indemnification hereunder. Such counsel shall, among other things,
render its written opinion to the Company and Indemnitee as to whether and to
what extent Indemnitee would be permitted to be indemnified under the Act and as
to the amount of reasonable indemnification. Such written opinion shall be
binding upon the Company and Indemnitee. The Company shall agree to pay the
reasonable fees of such special counsel and to indemnify fully such counsel
against any and all expenses, including attorney fees, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.
9.2 For the purpose of this Section 9, a "Change in Control"
shall be deemed to have occurred if:
9.2.1 Any "person," as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "1934 Act"), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportion as their ownership of the
Company, becomes the "Beneficial Owner," as defined in Rule 13d-3 under the 1934
Act, directly or indirectly, of securities of the Company representing
twenty-five percent (25%) or more of the combined voting power of the Company's
then outstanding voting securities ("Voting Stock");
9.2.2 During any period of twenty-four (24) consecutive months,
not including any period prior to the execution of this Agreement, individuals
who at the beginning of such period constitute the board of
directors of the Company and any new director, other than a director designated
by a person who has entered into an agreement with the Company to effect a
transaction described in Section 9.2.1 or 9.2.3, whose election was approved by
a vote of at least two-thirds (2/3rds) of the shares entitled to vote, cease for
any reason to constitute a majority of the board; or
9.2.3 The stockholders of the Company (i) approve a merger
or consolidation of the Company with any other corporation, other than a merger
or consolidation that would result in the Voting Stock outstanding immediately
prior thereto continuing to represent, either by remaining outstanding or by
being converted into Voting Stock of the surviving entity, at least seventy
percent (70%) of the combined voting power of the Voting Stock of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, (ii) approve a plan of complete liquidation of the Company
or(iii) approve an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets.
10. Potential Change in Control. 10.1 In the event of a Potential
Change in Control (as hereinafter defined), the Company shall, upon written
request by Indemnitee, create a trust (the "Trust") for the benefit of
Indemnitee and from time to time upon written request of Indemnitee shall fund
the Trust in an amount sufficient to satisfy any and all Expenses reasonably
anticipated at the time of each such request to be incurred in connection with
investigating, preparing for and defending any Proceeding for which Indemnitee
may be entitled to indemnification under this Agreement, and any and all
Liability for which Indemnitee is entitled to indemnification hereunder from
time to time actually paid, reasonably anticipated or proposed to be paid. The
amount or amounts to be deposited in the Trust pursuant to the foregoing funding
obligations shall be determined in accordance with the provisions of the Act
with regard to determination and authorization of indemnification.
10.2 The terms of the Trust shall provide that upon a Change in
Control:
10.2.1 The Trust shall not be revoked or the principal
thereof invaded without the prior written consent of Indemnitee;
10.2.2 The trustee of the Trust (the "Trustee") shall
advance, within two (2) business days of a written request by Indemnitee in
accordance with the requirements of Section 4, any and all Expenses to
Indemnitee, and Indemnitee hereby agrees to reimburse the Trust under the
circumstances under which Indemnitee would be required to reimburse the Company
pursuant to the Act and Section 4;
10.2.3 The Trust shall continue to be funded by the
Company in accordance with the funding obligation set forth above;
10.2.4 The Trustee shall promptly pay to Indemnitee all
amounts for which Indemnitee shall be entitled to indemnification pursuant to
this Agreement or otherwise; and
10.2.5 All unexpended funds in the Trust shall revert to
the Company upon a final determination by the special counsel established in
accordance with Section 9 or a court of competent jurisdiction, as the case may
be, that Indemnitee has been fully indemnified under the terms of this
Agreement.
10.3 The Trustee shall be selected by Indemnitee with the consent of
the Company, which consent shall not be unreasonably withheld, and all
reasonable expenses, fees and other disbursements of the Trustee in connection
with the establishment and administration of the Trust shall be paid by the
Company.
10.4 Nothing in this Section 10 shall relieve the Company of any of its
obligations under this Agreement.
10.5 A "Potential Change in Control" shall be deemed to have
occurred if: (i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control; (ii) any person,
including the Company, publicly announces an intention to take or to consider
taking actions that, if consummated, would constitute a Change in Control; (iii)
any person, other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is or becomes the
beneficial owner, directly or indirectly, of stock of the Company representing
nine and one-half percent (9.5%) or more of the combined voting power of the
Company's then outstanding Voting Stock, increases his or her beneficial
ownership of such stock by five (5) percentage points or more over the
percentage so owned by such person; or (iv) the board of directors adopts a
resolution to the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
11. Nonexclusivity and Continuation of Rights. The indemnification
provided by this Agreement shall not be deemed exclusive of any other rights
consistent with the laws of the state of Nevada to which Indemnitee may be
entitled under the Company's articles of incorporation, bylaws or any other
agreement, vote of shareholders or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Company, and shall continue
notwithstanding that Indemnitee may have ceased to be connected with the
Company.
12. Heirs, Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the heirs, successors and assigns of the Company and
Indemnitee.
13. Severability. Wherever possible, each provision in this Agreement
shall be interpreted in such manner as to be effective and valid under the laws
of the state of Nevada, but if any provision of this Agreement shall be
invalidated by any court of competent jurisdiction, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
14. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all documents required and shall do
all acts necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
15. Modification and Amendment. No amendment, modification, termination
or claimed waiver of any of the provisions hereof shall be valid unless in
writing and signed by both of the parties hereto.
16. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed or mailed by certified or registered mail
with postage prepaid, on the third business day after the date on which it is so
mailed:
If to Indemnitee: If to the Company:
Xxxxx Passanissi Noble Concepts Fidelity, Inc.
000 Xxxxxxx Xxx. 000 Xxxxxxxx, 0xx Xxxxx
Xx Xxxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
or to such other address as may have been furnished to the other party.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Nevada.
18. Counterparts. This Agreement may be executed in one or more
separate counterparts, each of which, once they are executed, shall be deemed to
be an original. Such counterparts shall be and constitute one and the same
instrument.
19. Facsimile Transmission and Signatures. Facsimile transmission of
any signed original document, and retransmission of any signed facsimile
transmission, shall be the same as delivery of an original document. At the
request of either party, the parties will confirm facsimile transmitted
signatures with an original document.
IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first hereinabove written.
INDEMNITEE Noble Concepts Fidelity, Inc.
a Nevada corporation
/s/ Xxxxx Passanissi By: /s/ Xxxxx X. Xxxxx
---------------------------- ------------------------------
Xxxxx Passanissi Xxxxx X. Xxxxx
President
EXHIBIT B
FORM OF SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("AGREEMENT") is made and entered
into as of this _____ day of ______________, ______, by and between Assisted
Living Concepts, Inc. and one or more of its Affiliates (collectively,
"COMPANY"), and ______________________ ("EMPLOYEE") in order to provide the
terms and conditions of Employee's termination of employment, to fully and
completely resolve any and all issues that Employee may have in connection with
Employee's employment with Company or the termination of that employment, and to
promote an amicable long-term relationship between Company and Employee.
In consideration of the mutual promises and conditions contained herein,
the parties agree as follows:
1. Separation. Employee has been [is currently] employed at Company as
Employee. Employee shall have no further job responsibilities at Company
_______________ and Employee's employment shall be terminated effective as of
such date.
2. Payment to Employee. Pursuant to the Employment Agreement entered
into between the parties and subject to certain conditions precedent set forth
therein, Company agrees to provide a Severance Amount to Employee as set forth
in paragraph 11(a)(i) of the Employment Agreement; provided, however, that
Employee must execute and not revoke this Agreement.
3. Release of Claims. In return for the benefits conferred under the
Employment Agreement and this Agreement (which Employee acknowledges Company has
no legal obligation to provide if Employee does not enter into this Agreement),
Employee, on behalf of Employee and Employee's heirs, executors, administrators,
successors and assigns, hereby releases and forever discharges Company and its
past, present and future affiliates, future parent companies, subsidiaries,
predecessors, successors and assigns, and each of their past, present and future
shareholders, officers, directors, employees, agents and insurers, from any and
all claims, actions, causes of action, disputes, liabilities or damages, of any
kind, which may now exist or hereafter may be discovered, specifically
including, but not limited to, any and all claims, disputes, actions, causes of
action, liabilities or damages, arising from or relating to Employee's
employment with Company, or the termination of such employment, except for any
claim for payment or performance pursuant to the terms of this Agreement. This
release includes, but is not limited to, any claims that Employee might have for
reemployment or reinstatement or for additional compensation or benefits and
applies to claims that Employee might have under either federal, state or local
law dealing with employment, contract, tort, wage and hour, or civil rights
matters, including, but not limited to, Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act, the Americans with Disabilities
Act, the Family and Medical Leave Act, similar state laws, and any regulations
under such laws. This release shall not affect any accrued rights Employee may
have under any medical insurance, workers compensation or retirement plan
because of Employee's prior employment with Company. EMPLOYEE ACKNOWLEDGES AND
AGREES THAT THROUGH THIS RELEASE EMPLOYEE IS GIVING UP ALL RIGHTS AND CLAIMS OF
EVERY KIND AND NATURE WHATSOEVER, KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED,
THAT EMPLOYEE MAY HAVE AGAINST COMPANY AND THE OTHER PERSONS NAMED ABOVE, EXCEPT
FOR THE RIGHTS SPECIFICALLY EXCLUDED ABOVE.
4. Confidentiality. Employee agrees to keep this Agreement and each of
its terms, including without limitation the Severance Amount, and the fact that
Employee has received such Amount, strictly confidential. Employee may only
disclose the terms of this Agreement only to Employee's attorney or accountant,
or as required by law. Employee understands that Company may be required to
publicly disclose the terms of this Agreement.
5. No Disparagement. Employee shall not make any disparaging or
derogatory remarks of any nature whatsoever about Company, its officers,
directors or employees, or its services and/or products (if any), either
publicly or privately, unless required to do so by law.
6. No Admission of Liability. This Agreement shall not be construed as
an admission of liability or wrongdoing by Company because no admission is
intended. Employee understands and agrees that this Agreement shall not be
offered as evidence by Employee in any proceeding, whether administrative or
otherwise.
7. Employment Agreement. Employee reaffirms Employee's acknowledgements
and obligations under paragraph 16 of the Employment Agreement executed by
Employee in conjunction with Employee's employment at Company. The terms of such
Employment Agreement are incorporated herein by this reference. Employee agrees
to strictly comply with the terms of the Employment Agreement.
8. Return of Property. Employee agrees to and hereby represents that
Employee has returned to Company all of Company's property and all materials
containing confidential information of Company that were in Employee's
possession or under Employee's control.
9. Miscellaneous.
9.1 Final and Entire Agreement. This document constitutes the
entire, final, and complete agreement and understanding of the
partie with respect to the subject matter hereof and
supersedes and replaces all written and oral agreements and
understandings heretofore made or existing by and between the
parties or their representatives with respect thereto, other
than the Employment Agreement executed between the parties.
There have been no representations or commitments by Company
to make any payment or perform any act other than those
expressly stated herein.
9.2 Waiver. No waiver of any provision of this Agreement shall
be deemed, or shall constitute a wavier of any other
provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the parties making the waiver.
9.3 Binding Effect. All rights, remedies, and liabilities
herein given to or imposed upon the parties shall extend to,
inure to the benefit of and bind, as the circumstances may
require, the parties and their representative heirs, personal
representatives, administrators, successors and assigns.
9.4 Amendment. No supplement, modification or amendment of
this Agreement shall be valid, unless the same is in writing
and signed by both parties.
9.5 Attorneys Fees. If it becomes necessary to enforce this
Agreement, or any part hereof, the prevailing party shall be
entitled to recover its reasonable attorney fees and costs
incurred therein, including all attorneys fees and costs on
appeal and otherwise.
9.6 Governing Law. This Agreement and the rights of the
parties hereunder shall be governed, construed and enforced in
accordance with the laws of the State of California, without
regard to its conflict of law principles. Any suit or action
arising out of or in connection with this Agreement, or any
breach hereof, shall be brought and maintained in the Superior
Court of the State of California, county of Orange. The
parties hereby irrevocably submit to the jurisdiction of such
court for the purpose of such suit or action and hereby
expressly and irrevocably waive, to the fullest extent
permitted by law, any claim that any such suit or action has
been brought in an inconvenient forum.
9.7 Employee Given 21 Days to Consider Agreement. Employee
acknowledges that Company advised Employee in writing to
consult with an attorney before signing this Agreement and
that Employee has had at least 21 days to consider whether to
execute this Agreement.
9.8 Revocation. Employee may revoke this Agreement by written
notice delivered to the President or Chief Executive Officer
of the Company within seven (7) days following the date
Employee signed the Agreement. If not revoked under the
preceding sentence, this Agreement becomes effective and
enforceable after the seven-day period has expired.
EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS FREELY AND VOLUNTARILY EXECUTED THIS
AGREEMENT, WITH A COMPLETE UNDERSTANDING OF ITS TERMS AND PRESENT AND FUTURE
EFFECTS.
"EMPLOYEE" Noble Concepts Fidelity, Inc.
/s/ Xxxxx Passanissi By: /s/ Xxxxx X. Xxxxx
----------------------------- -----------------------------
Xxxxx Passanissi Xxxxx X. Xxxxx
President
EXHIBIT C
EMPLOYEE NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
During the term of Employee's employment and afterwards, unless authorized in
writing by U.S. West Homes, Inc. and its affiliates, herein known as
"Company," Employee shall not disclose any Confidential Information, defined
below, to any person nor shall Employee use Confidential Information for any
purpose at any time, except for the purpose of performing Employee's job duties
on behalf of or as directed by the Company.
All Confidential Information which comes into Employee's possession or is
generated by Employee during Employee's employment by the Company shall be and
remain the exclusive property of the Company, and Employee agrees to return all
such documents and tangible property of the Company on termination of Employee's
employment or at such earlier time as the Company may request.
Information received by Employee shall not be considered Confidential
Information to the extent that (i) the information, as shown by competent
evidence, was already known to Employee from sources outside of the Company at
the time Employee received it from the Company; or (ii) the information is or
becomes, through no fault of Employee, general knowledge in the public domain.
The term "Confidential Information" shall be deemed to include, but shall not be
limited to, the profiles and demographics of residents in the Companies
facilities, costs of care, employee matters, and compliance issues, as well as
the architectural plans and specifications, methods, techniques, financing,
formats, specifications, procedures, business and financial information, systems
and knowledge of and experience in the operation and/or franchising of assisted
living residences, all of which may hereafter be improved, further developed, or
otherwise modified by Company from time to time.
Employee acknowledges and agrees that any breach of the covenants and agreements
contained in this Agreement will cause irreparable injury to Company for which
there is and shall be no adequate remedy at law. Accordingly, Employee hereby
consents to the issuance by any court of competent jurisdiction of an injunction
in favor of Company enjoining any such breach or violation of the covenants or
agreements contained herein; provided, that no request for or receipt of any
such injunction by Company shall be considered an election of remedies or waiver
of any right to assert any other remedies Company may have against Employee,
either at law or in equity.
Date
January 2, 2003 /s/ Xxxxx Passanissi
--------------------
Xxxxx Passanissi
