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Exhibit 10.15
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Employment Agreement") is dated this 25th
day of January, 2001, between RES-CARE, INC., a Kentucky corporation (the
"Company"), and XXXXXXXXX X. XXXXXXXXX (the "Employee").
RECITALS:
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that the Company has a need for a Vice President and Chief Financial
Officer for the Division for Persons with Disabilities (Chief Financial
Officer);
WHEREAS, the Employee has substantial experience in financial and
accounting matters involving the health care field; and
WHEREAS, the Company and the Employee have reached agreement on the
terms and conditions under which Employee will perform services for the Company.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs the Employee, and
the Employee accepts such employment, upon the terms and conditions herein set
forth for an initial term commencing on March 5, 2001 and ending on December 31,
2003, subject to earlier termination only in accordance with the express
provisions of this Employment Agreement ("Initial Term"). This Employment
Agreement shall be automatically extended on a year-to-year basis (January 1
through December 31 of each successive year), unless sooner terminated in
accordance with the express provisions of this Employment Agreement ("Additional
Terms"), upon the expiration of the Initial Term or any Additional Term, unless
prior to the commencement of a sixty (60) day period expiring at the end of such
Initial Term or any Additional Term, the Company or the Employee shall have
given written notice to the other stating that the term of this Employment
Agreement shall not be extended. For purposes of this Employment Agreement, the
term "Term" shall mean the Initial Term plus all Additional Terms.
2. DUTIES.
(a) EMPLOYMENT AS CHIEF FINANCIAL OFFICER. During the Term,
the Employee shall serve as the Chief Financial Officer of the
Company's Division for Persons with Disabilities (DPD), as well as be a
Vice President and perform the following services: serve as key
business advisor and partner with Divisional President and Executive
Vice President of Operations; serve as liaison with a dotted line to
the corporate CFO and all of the corporate financial staff; provide
leadership to the DPD regional directors of finance; oversee the
administration of the budgeting accounting, financial planning and
analysis and revenue management functions of the division; oversee all
payroll and
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accounts payable functions of the division including the improvement of
current payroll processing and the rollout in 2001 of the new time and
attendance system; coordinating for the division the development of the
annual plan and strategic plan; monitoring the divisions cash flow, as
it relates to accounts receivables and implementing procedures to
achieve acceptable collection levels - finish full implementation of
the new HCS and electronic billing arrangements; overseeing the timely
and accurate publication and distribution of monthly financial
statements on a regional and consolidated division basis; working with
corporate finance to refine and develop financial/accounting policies
and procedures and to ensure the compliance with same in the division;
assist the corporate CFO and CEO in roadshows, annual shareholder
reports and the banking community. The Employee shall, subject to the
supervision and control of the President, perform such other duties and
exercise such powers over and with regard to such financial functions
and such additional duties as may be prescribed from time to time by
the President, including, without limitation, serving as an officer or
director of one or more subsidiaries or affiliates of the Company, if
elected to such positions, without any additional salary or other
compensation. The Employee shall serve as a member of the Resource
Center's Leadership Team.
(b) TIME AND EFFORT. The Employee shall devote her best
efforts and all of her business time, energies and talents exclusively
to the business of the Company and to no other business during the Term
of this Employment Agreement; provided, however, that subject to the
restrictions in Section 7 hereof, the Employee may (i) invest her
personal assets in such form or manner as will not require her services
in the operation of the affairs of the entities in which such
investments are made and (ii) subject to satisfactory performance of
the duties described in Section 2(a) hereof, devote such time as may be
reasonably required for her to continue to maintain her current level
of participation in various civic and charitable activities.
(c) COMPLIANCE CERTIFICATE. Not less frequently than annually
and upon the termination of the Employee's employment hereunder for any
reason other than Employee's death, the Employee shall execute and
deliver to the President a certificate of the Employee's level of
compliance with applicable laws, regulations regarding company matters
and business regarding the provision of services to clients and
xxxxxxxx to its paying agencies ("Compliance Certificate"). Each such
Compliance Certificate requested by the Company shall be completed and
delivered by the Employee to the President, as the case may be, within
two (2) days after the date of such request.
3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. The Company shall pay to the Employee during
the Term an annual salary (the "Base Salary"), which initially shall be
$190,000. The Base Salary shall be due and payable in substantially
equal bi-weekly installments or in such other installments as may be
necessary to comport with the Company's normal pay periods for all
employees.
Provided the Employee is still employed, the Base Salary shall
be increased, effective as of the first day of each January, commencing
January 1, 2002, by the greater of (x) five percent (5%) or (y) the
percentage by which the Consumer Price Index for all
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Urban Consumers (CPI-U), All-Items, 1982-1984=100, as published by the
Bureau of Labor Statistics (the "CPI"), established for the month of
December immediately preceding the date on which the adjustment is to
be made exceeds the CPI published for the month of December of the
immediately preceding year. If the Bureau of Labor Statistics suspends
or terminates its publication of the CPI, the parties agree that a
reasonably comparable price index shall be substituted for the CPI.
(b) INCENTIVE PROGRAM. During the Term, the Employee shall be
eligible for incentive compensation in accordance with a written
incentive program mutually established by the President and the
Employee on an annual basis (the "Incentive Program"). The Incentive
Program shall provide that sixty-five percent (65%) of the maximum
incentive that may be earned by the Employee shall be based on
compliance goals mutually established by the President and the Employee
and thirty-five percent (35%) of the maximum incentive that may be
earned by the Employee shall be based on the financial performance of
the Company and its subsidiaries as a whole. All incentive payments
under the Incentive Program shall be determined quarterly, and shall be
calculated by reference to the incentive percentage earned by the
Employee multiplied by the Base Salary actually paid to the Employee
for the calendar quarter for which the incentive is determined. The
maximum percentage of the Employee's Base Salary that the Employee may
earn under the Incentive Program shall be forty percent (40%) of the
Base Salary actually paid to the Employee for the calendar quarter for
which the incentive is determined. Any quarterly performance incentive
earned by the Employee for any calendar quarter shall be paid by the
Company to the Employee not later than sixty (60) days after the end of
such calendar quarter. Any amounts earned by the Employee under the
Incentive Program shall be hereinafter referred to as the "Performance
Incentive."
(c) PARTICIPATION IN BENEFIT PLANS. During the Term, Employee
shall be entitled to participate in all employee benefit plans and
programs (including but not limited to vacation, sick and other time
off policies, retirement and profit sharing plans, health insurance,
etc.) provided by the Company under which the Employee is eligible in
accordance with the terms of such plans and programs, subject to
customary waiting and vesting periods. The Company reserves the right
to amend, modify or terminate in their entirety any of such programs
and plans. The Company shall reimburse the Employee for the amount paid
by her for health insurance premiums for Cobra coverage under her
former employer's health insurance plan for the first three (3) months
of the Initial Term. The Employee shall submit requests for such
reimbursement monthly. Furthermore, not with standing, the above
Employee shall be entitled to three weeks vacation in calendar year
2001-2003.
(d) STOCK OPTION GRANT. As an inducement for the execution of
this Employment Agreement by the Employee, on March 5, 2001, the
Employee shall be granted options to purchase 30,000 shares of Company
common stock. Such stock options shall be granted pursuant to and, to
the extent not expressly inconsistent herewith, governed by the Company
stock option plan that is applicable to its managerial employees (the
"Stock Plan"). Twenty percent (20%) of such stock options shall vest
and be exercisable on March 5, 2001. Provided the Employee shall
continue to be employed hereunder, twenty percent (20%) of such stock
options shall vest and be exercisable on each of the next four (4)
anniversaries of such date (with such number of shares to be
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adjusted in accordance with the terms of the Stock Plan for stock
splits, stock dividends, recapitalizations and the like). Any stock
options that shall not be vested at the effective date of termination
of the Employee's employment hereunder shall expire and any vested
options shall expire in accordance with the terms of the Stock Plan.
Such options shall have an exercise price based upon the closing sale
price of Company common stock as reported on the Nasdaq National Market
on the last trading day prior to March 5, 2001.
(e) ADDITIONAL BENEFITS. As additional consideration for the
execution of this Employment Agreement and the continuing services of
the Employee hereunder, the Company has provided and will provide the
following additional benefits to the Employee:
(i) Temporary Living Expenses. It is anticipated that
the Employee will offer her existing residence for sale
commencing in April, 2001. In the interim, the Employee shall
secure temporary lodging in the Louisville, Kentucky
metropolitan area. The Company shall reimburse the Employee
for her temporary living expenses in the Louisville, Kentucky
metropolitan area for a maximum period of six (6) months, up
to a maximum amount of $2,000 per month. The Employee shall
submit requests for such reimbursement monthly.
(ii) Moving Expenses. The Employee will be reimbursed
by the Company for her reasonable and necessary expenses in
connection with the relocation of her residence from the Avon,
Connecticut area to the Louisville, Kentucky metropolitan area
pursuant to the Company's standard relocation policy except
that the Employee shall be reimbursed for two (2) trips for
location and selection of a residence and the $5,000 cap on
expense reimbursement in such policy shall be waived by the
Company. To the extent that such reimbursements increase the
taxable income of the Employee, the Company shall increase
such reimbursements by forty percent (40%).
(f) OUT-OF-POCKET EXPENSES. The Company shall promptly pay the
ordinary, necessary and reasonable expenses incurred by the Employee in
the performance of the Employee's duties hereunder (or if such expenses
are paid directly by the Employee shall promptly reimburse her for such
payment), consistent with the reimbursement policies adopted by the
Company from time to time and subject to the prior written approval by
the Chairman.
(g) WITHHOLDING OF TAXES; INCOME TAX TREATMENT. If, upon the
payment of any compensation or benefit to the Employee under this
Employment Agreement (including, without limitation, in connection with
the exercise of any option), the Company determines in its discretion
that it is required to withhold or provide for the payment in any
manner of taxes, including but not limited to, federal income or social
security taxes, state income taxes or local income taxes, the Employee
agrees that the Company may satisfy such requirement by:
(i) withholding an amount necessary to satisfy such
withholding requirement from the Employee's compensation or
benefit; or
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(ii) conditioning the payment or transfer of such
compensation or benefit upon the Employee's payment to the
Company of an amount sufficient to satisfy such withholding
requirement.
The Employee agrees that she will treat all of the amounts payable
pursuant to this Employment Agreement as compensation for income tax
purposes.
4. TERMINATION. The Employee's employment hereunder may be terminated
under this Employment Agreement as follows, subject to the Employee's rights
pursuant to Section 5 hereof:
(a) DEATH. The Employee's employment hereunder shall terminate
upon her death.
(b) DISABILITY. The Employee's employment shall terminate
hereunder at the earlier of (i) immediately upon the Company's
determination (conveyed by a Notice of Termination (as defined in
paragraph (f) of this Section 4)) that the Employee is permanently
disabled, and (ii) the Employee's absence from her duties hereunder for
180 days. "Permanent disability" for purposes of this Employment
Agreement shall mean the onset of a physical or mental disability which
prevents the Employee from performing the essential functions of the
Employee's duties hereunder, which is expected to continue for 180 days
or more, with any reasonable accommodation required by state and/or
federal disability anti-discrimination laws, including, but not limited
to, the Americans With Disabilities Act of 1990, as amended.
(c) CAUSE. The Company may immediately terminate the
Employee's employment hereunder for Cause by delivering to the Employee
a Notice of Termination so indicating. For purposes of this Employment
Agreement, the Company shall have "Cause" to terminate the Employee's
employment because of the Employee's criminal personal dishonesty or
intentional misconduct in the course related to her employment with the
Company, breach of fiduciary duty involving personal profit, failure to
substantially perform her duties hereunder, conviction of, or plea of
nolo contendere to, any criminal law, rule or regulation (other than
traffic violations or misdemeanors) or breach of any material provision
of this Employment Agreement.
(d) WITHOUT CAUSE. The Company shall have the right to
terminate the Employee's employment under this Employment Agreement at
any time without Cause (as defined in paragraph (c) of this Section 4)
by delivery of a Notice of Termination specifying a date of termination
at least thirty (30) days following delivery of such notice.
(e) VOLUNTARY TERMINATION. By not less than thirty (30) days
prior written notice to the President, Employee may voluntarily
terminate her employment hereunder.
(f) NOTICE OF TERMINATION. Any termination of the Employee's
employment by the Company during the Term pursuant to paragraphs (b),
(c) or (d) of this Section 4 shall be communicated by a Notice of
Termination to the Employee. For purposes of this Employment Agreement,
a "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Employment
Agreement relied
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upon and in the case of any termination for Cause shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Employee's employment.
(g) DATE OF TERMINATION. The "Date of Termination" shall, for
purposes of this Employment Agreement, mean: (i) if the Employee's
employment is terminated by her death, the date of her death; (ii) if
the Employee's employment is terminated on account of disability
pursuant to Section 4(b) above, thirty (30) days after Notice of
Termination is given (provided that the Employee shall not, during such
30-day period, have returned to the performance of her duties on a
full-time basis), (iii) if the Employee's employment is terminated by
the Company for Cause pursuant to Section 4(c) above, the date
specified in the Notice of Termination, (iv) if the Employee's
employment is terminated by the Company without Cause, pursuant to
Section 4(d) above, the date specified in the Notice of Termination,
(v) if the Employee's employment is terminated voluntarily pursuant to
Section 4(e) above, the date specified in the written notice delivered
by the Employee to the Company as provided in Section 4(e) above, and
(vi) if the Employee's employment is terminated by reason of an
election by either party not to extend the Term, the last day of the
then effective Term.
5. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) DEATH. If the Employee's employment is terminated by
reason of her death during the Term, the Employee's estate shall
continue to receive installments of her then current Base Salary until
the date of her death and shall receive any earned but unpaid
Performance Incentive for any calendar quarter ending prior to the date
of her death.
(b) DISABILITY. If the Employee's employment is terminated by
reason of her disability during the Term, the Employee shall continue
to receive installments of her then current Base Salary while actively
at work and until the earlier of (i) the date of termination in
accordance with Section 4(b) of this Employment Agreement or (ii) the
date that short or long-term disability payments to the Employee
commence under any plan or program then provided and funded by the
Company. If the Employee's installments of Base Salary cease by reason
of clause (ii) of the preceding sentence but the benefits payable under
any such disability plan or program do not provide 100% replacement of
the Employee's installments of Base Salary during such period, the
Employee shall be paid at regular payroll intervals until the
provisions of clause (i) of the preceding sentence becomes effective,
an amount equal to the difference between the periodic installments of
her then current Base Salary that would have otherwise been payable and
the disability benefit paid from such disability plan or program. In
the event of any such termination, the Employee shall also receive any
earned but unpaid Performance Incentive for any calendar quarter prior
to the Date of Termination. Upon termination due to death prior to a
termination as specified in the preceding provisions of this paragraph
(b), the payment provisions of this paragraph (b) shall no longer apply
and Section 5(a) above shall apply.
(c) CAUSE. If the Employee's employment is terminated for
Cause, the Employee shall continue to receive installments of her then
current Base Salary only
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through the Date of Termination and the Employee shall not be entitled
to receive any Performance Incentive (other than any earned but unpaid
Performance Incentive for any prior calendar quarter), and shall not be
eligible for any severance payment of any nature.
(d) WITHOUT CAUSE. If the Employee's employment is terminated
without Cause, and such Notice of Termination is given within one (1)
year after a Change of Control (as defined below) has occurred to the
Company, the Employee shall continue to receive installments of her
then current Base Salary until the Date of Termination and for one (1)
year thereafter. In all other cases in which the Employee's employment
shall be terminated without Cause, the Employee shall continue to
receive installments of her then current Base Salary until the Date of
Termination and for six (6) months thereafter. In all cases in which
Employee's employment shall be terminated without Cause, the Employee
shall also be entitled to receive any earned but unpaid Performance
Incentive for any prior calendar quarter. A "Change of Control" for
purposes of this Employment Agreement shall have the same meaning as
that term is given in the most current Stock Plan of the Company in
effect before the Date of Termination.
(e) EXPIRATION OF TERM. If the Employee's employment shall be
terminated by reason of expiration of the Term (irrespective of which
party elected not to extend the Term), the Employee shall continue to
receive installments of her then current Base Salary until the Date of
Termination and the Company shall pay the Employee any earned
Performance Incentive for the last calendar quarter of the Term.
(f) VOLUNTARY TERMINATION. If the Employee's employment shall
be terminated pursuant to Section 4(e) hereof, the Employee shall
continue to receive installments of her then current Base Salary until
the Date of Termination and the Employee shall not be entitled to
receive any Performance Incentive (other than any earned but unpaid
Performance Incentive for any calendar quarter ending prior to the Date
of Termination), and shall not be entitled to any severance payment of
any nature.
(g) NO FURTHER OBLIGATIONS AFTER PAYMENT. After all payments,
if any, have been made to the Employee pursuant to the applicable
provisions of paragraphs (a) through (f) of this Section 5, the Company
shall have no further obligations to the Employee under this Employment
Agreement other than the provision of any employee benefit plan
required to be continued under applicable law or by its terms.
6. DUTIES UPON TERMINATION. Upon the termination of Employee's
employment hereunder for any reason whatsoever (including but not limited to the
failure of the parties hereto to agree to the extension of this Employment
Agreement pursuant to Section 1 hereof), Employee shall promptly (a) comply with
her obligation to deliver a Compliance Certificate as provided in Section 2(c)
hereof, and (b) return to the Company any property of the Company or its
subsidiaries then in Employee's possession or control, including without
limitation, any Confidential Information (as defined in Section 7(d)(iii)
hereof) and whether or not constituting Confidential Information, any technical
data, performance information and reports (except for her own personnel
information), sales or marketing plans, documents or other records, and any
manuals, drawings, tape recordings, computer programs, discs, and any other
physical representations of any other information relating to the Company, its
subsidiaries or affiliates or to the Business (as defined in Section 7(d)(iv)
hereof) of the Company. Employee hereby
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acknowledges that any and all of such documents, items, physical representations
and information are and shall remain at all times the exclusive property of the
Company.
7. RESTRICTIVE COVENANTS.
(a) ACKNOWLEDGMENTS. Employee acknowledges that (i) her
services hereunder are of a special, unique and extraordinary character
and that her position with the Company will place her in a position of
confidence and trust with the operations of the Company, its
subsidiaries and affiliates (collectively, the "Res-Care Companies")
and allows her access to Confidential Information, (ii) the Company has
provided Employee with a unique opportunity as the Chief Financial
Officer of the DPD Division of the Company, (iii) the nature and
periods of the restrictions imposed by the covenants contained in this
Section 7 are fair, reasonable and necessary to protect and preserve
for the Company the benefits of Employee's employment hereunder, (iv)
the Res-Care Companies would sustain great and irreparable loss and
damage if Employee were to breach any of such covenants, (v) the
Res-Care Companies conduct and are aggressively pursuing the conduct of
their business actively in and throughout the entire Territory (as
defined in paragraph (d)(ii) of this Section 7), and (vi) the Territory
is reasonably sized because the current Business of the Res-Care
Companies is conducted throughout such geographical area, the Res-Care
Companies are aggressively pursuing expansion and new operations
throughout such geographic area and the Res-Care Companies require the
entire Territory for profitable operations.
(b) CONFIDENTIALITY AND NON-DISPARAGEMENT COVENANTS. Having
acknowledged the foregoing, Employee covenants that without limitation
as to time, (i) commencing on the Execution Date, she will not directly
or indirectly disclose or use or otherwise exploit for her own benefit,
or the benefit of any other Person (as defined in paragraph (d)(v) of
this Section 7), except as may be necessary in the performance of her
duties hereunder, any Confidential Information, and (ii) commencing on
the Date of Termination, she will not disparage or comment negatively
(except as required by law or in connection with any judicial or
administrative proceedings or pursuant to any lawfully issued
subpoenas) about any of the Res-Care Companies, or their respective
officers, directors, employees, policies or practices, and she will not
discourage anyone from doing business with any of the Res-Care
Companies and will not encourage anyone to withdraw their employment
with any of the Res-Care Companies.
(c) COVENANTS. Having acknowledged the statements in Section
7(a) hereof, Employee covenants and agrees with the Res-Care Companies
that (without the prior written approval from the Company) she will
not, directly or indirectly, from the Execution Date until the Date of
Termination, and for a period of one (1) year thereafter, directly or
indirectly (i) offer employment to, hire, solicit, divert or
appropriate to herself or any other Person, any business or services
(similar in nature to the Business) of any person who was an employee
or an agent of any of the Res-Care Companies at any time during the
last six (6) months of Employee's employment hereunder; or (ii) own,
manage, operate, join, control, assist, participate in or be connected
with, directly or indirectly, as an officer, director, shareholder,
partner, proprietor, employee, agent, consultant, independent
contractor or otherwise, any Person which is, at the time, directly or
indirectly, engaged in the Business of the Res-Care Companies within
the Territory. The
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Employee further agrees that from the Execution Date until the Date of
Termination, she will not undertake any planning for or organization of
any business activity that would be competitive with the Business.
(d) DEFINITIONS. For purposes of this Employment Agreement:
(i) For purposes of this Section 7, "termination of
Employee's employment" shall include any termination pursuant
to paragraphs (b), (c), (d) and (e) of Section 5 hereof, the
termination of such Employee's employment by reason of the
failure of the parties hereto to agree to the extension of
this Agreement pursuant to Section 1 hereof or the voluntary
termination of Employee's employment hereunder.
(ii) The "Territory" shall mean the forty-eight (48)
contiguous states of the United States, the United States
Virgin Islands, Puerto Rico and all of the Provinces of
Canada.
(iii) "Confidential Information" shall mean any
business information relating to the Res-Care Companies or to
the Business (whether or not constituting a trade secret),
which has been or is treated by any of the Res-Care Companies
as proprietary and confidential and which is not generally
known or ascertainable through proper means. Without limiting
the generality of the foregoing, so long as such information
is not generally known or ascertainable by proper means and is
treated by the Res-Care Companies as proprietary and
confidential, Confidential Information shall include the
following information regarding any of the Res-Care Companies:
(1) any patent, patent application,
copyright, trademark, trade name,
service xxxx, service name,
"know-how" or trade secrets;
(2) customer lists and information
relating to (i) any client of any of
the Res-Care Companies or (ii) any
client of the operations of any
other Person for which operations
any of the Res-Care Companies
provides management services;
(3) supplier lists, pricing policies,
consulting contracts and competitive
bid information;
(4) records, compliance and/or
operational methods and Company
policies and procedures, including
manuals and forms;
(5) marketing data, plans and
strategies;
(6) business acquisition, development,
expansion or capital investment plan
or activities;
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(7) software and any other confidential
technical programs;
(8) personnel information, employee
payroll and benefits data; (except
for Employee's own personnel
records)
(9) accounts receivable and accounts
payable;
(10) other confidential financial
information, including financial
statements, budgets, projections,
earnings and any unpublished
financial information; and
(11) correspondence and communications
with outside parties.
(iv) The "Business" of the Res-Care Companies shall
mean the business of providing youth treatment or services,
services to persons with mental retardation and other
developmental disabilities, including but not limited to
persons who have been dually diagnosed, services to persons
with acquired brain injuries, training services, or providing
management and/or consulting services to third parties
relating to the foregoing.
(v) The term "Person" shall mean an individual, a
partnership, an association, a corporation, a trust, an
unincorporated organization, or any other business entity or
enterprise.
(e) INJUNCTIVE RELIEF, INVALIDITY OF ANY PROVISION. Employee
acknowledges that her breach of any covenant contained in this Section
7 will result in irreparable injury to the Res-Care Companies and that
the remedy at law of such parties for such a breach will be inadequate.
Accordingly, Employee agrees and consents that each of the Res-Care
Companies in addition to all other remedies available to them at law
and in equity, shall be entitled to seek both preliminary and permanent
injunctions to prevent and/or halt a breach or threatened breach by
Employee of any covenant contained in this Section 7. If any provision
of this Section 7 is invalid in part or in whole, it shall be deemed to
have been amended, whether as to time, area covered, or otherwise, as
and to the extent required for its validity under applicable law and,
as so amended, shall be enforceable. The parties further agree to
execute all documents necessary to evidence such amendment.
(f) ADVICE TO FUTURE EMPLOYERS. If Employee, in the future,
seeks or is offered employment by any other Person, she shall provide a
copy of this Section 7 to the prospective employer prior to accepting
employment with that prospective employer.
8. ENTIRE AGREEMENT; MODIFICATION; WAIVER. This Employment Agreement
constitutes the entire agreement between the parties pertaining to the subject
matter contained in them and supersedes all prior and contemporaneous
agreements, representations, and understandings of the parties. No supplement,
modification, or amendment of this Employment Agreement shall be binding unless
executed in writing by all parties hereto (other than by reason of the
prospective modification of the Incentive Program by the Company or as provided
in the next to last sentence of Section 7(e) hereof). No waiver of any of the
provisions of this
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Employment Agreement will be deemed, or will constitute, a waiver of any other
provision, whether or not similar, nor will any waiver constitute a continuing
waiver. No waiver will be binding unless executed in writing by the party making
the waiver.
9. SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Employment Agreement shall
be binding on, and inure to the benefit of, the parties hereto and their
respective heirs, executors, legal representatives, successors and assigns;
PROVIDED, HOWEVER, that this Employment Agreement is intended to be personal to
the Employee and the rights and obligations of the Employee hereunder may not be
assigned or transferred by her.
10. NOTICES. All notices, requests, demands and other communications
required or permitted to be given or made under this Employment Agreement, or
any other agreement executed in connection therewith, shall be in writing and
shall be deemed to have been given on the date of delivery personally or upon
deposit in the United States mail postage prepaid by registered or certified
mail, return receipt requested, to the appropriate party or parties at the
following addresses (or at such other address as shall hereafter be designated
by any party to the other parties by notice given in accordance with this
Section):
TO THE COMPANY:
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Res-Care, Inc.
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx,
Chairman, President and Chief Executive Officer
TO THE EMPLOYEE:
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Xxxxxxxxx X. Xxxxxxxxx
00 Xxxx Xxxx Xxxxx
Xxxx, Xxxxxxxxxxx 00000
11. EXECUTION IN COUNTERPARTS. This Employment Agreement may be
executed in multiple counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same document.
12. FURTHER ASSURANCES. The parties each hereby agree to execute and
deliver all of the agreements, documents and instruments required to be executed
and delivered by them in this Employment Agreement and to execute and deliver
such additional instruments and documents and to take such additional actions as
may reasonably be required from time to time in order to effectuate the
transactions contemplated by this Employment Agreement.
13. SEVERABILITY OF PROVISIONS. The invalidity or unenforceability of
any particular provision of this Employment Agreement shall not affect the other
provisions hereof and this Employment Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were omitted.
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14. GOVERNING LAW; JURISDICTION; VENUE. This Employment Agreement is
executed and delivered in, and shall be governed by, enforced and interpreted in
accordance with the laws of, the Commonwealth of Kentucky. The parties hereto
agree that the federal or state courts located in Kentucky shall have the
exclusive jurisdiction with regard to any litigation relating to this Employment
Agreement and that venue shall be proper only in Jefferson County, Kentucky, the
location of the principal office of the Company.
15. TENSE; CAPTIONS. In construing this Employment Agreement, whenever
appropriate, the singular tense shall also be deemed to mean the plural, and
vice versa, and the captions contained in this Employment Agreement shall be
ignored.
16. SURVIVAL. The provisions of Sections 5, 6 and 7 hereof shall
survive the termination, for any reason, of this Employment Agreement, in
accordance with their terms.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the day and year set forth above.
RES-CARE, INC.
By: -----------------------------------
Xxxxxx X. Xxxxx
Chairman, President and Chief
Executive Officer
---------------------------------------
Xxxxxxxxx X. Xxxxxxxxx
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