1
EXHIBIT 10.6
EMPLOYEE BENEFITS AGREEMENT
THIS EMPLOYEE BENEFITS AGREEMENT is made on [ ], 1999 (the "Effective
Date") between STAFF BUILDERS, INC., a Delaware corporation ("Staff Builders"),
and TENDER LOVING CARE HEALTH CARE SERVICES, INC., a Delaware corporation
("TLC").
RECITALS
WHEREAS, the Board of Directors of Staff Builders has determined that
it is in the best interest of Staff Builders and its shareholders to separate
its home health care business from the remainder of its business;
WHEREAS, to effect the separation of its home health care business,
Staff Builders intends as of a date certain (the "Distribution Date") to
distribute to its shareholders, in a pro-rata distribution of a dividend (the
"Distribution") all shares of TLC common stock held by Staff Builders;
WHEREAS, certain employees of the "controlled group" (as defined in
Section 414 of the Internal Revenue Code of 1986, as amended, the "Code") of
Staff Builders are expected to become employees of TLC as of the Distribution
Date;
WHEREAS, this Agreement sets forth the employment and employee benefit
plan arrangements that will apply to certain employees of the Staff Builders
controlled group who are expected to become employees of TLC as of the
Distribution Date, and any other employees who are hired by TLC prior to the
Distribution Date (all of such employees being referred to herein as the "TLC
Employees"); and
WHEREAS, this Agreement is entered into pursuant to the Distribution
Agreement dated as of [_____________], 1999 between Staff Builders and TLC (the
"Distribution Agreement");
NOW THEREFORE, in consideration of the mutual covenants and agreements
made herein, the parties hereto agree as follows:
2
SECTION 1 - TERMINATION OF COVERAGE OF TLC
EMPLOYEES UNDER STAFF BUILDERS PLANS
1.1 Termination of Coverage of TLC Employees under Staff Builders Plans
Effective as of the Distribution Date, TLC Employees shall cease to be
eligible to actively participate in the following employee benefit plans offered
by the Staff Builders controlled group:
(a) Staff Builders welfare plans (consisting of health, basic life
insurance, accidental death and dismemberment insurance, supplemental life
insurance, long-term disability, supplemental disability, business travel
accident insurance, employee assistance plans and cafeteria plans, as set forth
in Exhibit 1 (the "Staff Builders Welfare Plans"); .
(b) the Staff Builders 401(k) savings plan (the "Staff Builders
401(k) Plan"); and
(c) the Staff Builders employee stock purchase and stock option
plans, as set forth in Exhibit 1 (the "Staff Builders Stock Plans").
As of the Distribution Date, Staff Builders will have no further obligation to
cover the TLC Employees under such plans (collectively, "Staff Builders Plans");
provided, however, that nothing in this Section 1.1 is intended to abrogate,
discontinue or terminate stop loss coverage under any policy maintained by Staff
Builders to the extent that it applies to medical claims and expenses resulting
from injury or illness to TLC employees incurred prior to the Distribution Date,
but for which no claim was filed, or is filed after such date.
1.2 Notice to Administrators and Insurers
To the extent required, Staff Builders agrees to inform, on or prior to
the Distribution Date, all relevant third party administrators and insurance
carriers, that coverage of the TLC Employees in the Staff Builders Plans ceases
as of the Distribution Date.
1.3 Amendment and Termination of Plans
Nothing in this Agreement, including without limitation, the agreement
of Staff Builders and TLC to maintain employee benefit plans or to make
contributions to such plans for any period, shall be construed as a limitation
of the right of Staff Builders or TLC to amend or terminate one or more of such
plans in accordance with the terms of this Agreement and applicable law.
2
3
SECTION 2 - ESTABLISHMENT OF TLC EMPLOYEE BENEFIT PLANS
2.1 Establishment of TLC 401(k) Plan
(a) Effective as of the Distribution Date, TLC's subsidiaries will
cease to be participating Employers under the Staff Builders 401(k) Plan and TLC
Employees will cease to accrue any benefits under such plan. Effective on the
Distribution Date, TLC will establish a 401(k) savings plan (the "TLC 401(k)
Plan") substantially the same in all respects to the Staff Builders 401(k) Plan
as in effect on that date.
(b) As soon as practicable following the Distribution Date and the
establishment of the TLC 401(k) Plan, Staff Builders shall direct the trustee of
the Staff Builders 401(k) Plan to transfer to the trustee of the TLC 401(k) Plan
(which shall accept such transfer) all assets (including, but not limited to,
outstanding participant loans) and liabilities in the individual accounts of TLC
Employees in the Staff Builders 401(k) Plan ("Transfer of Account Balances").
(c) As of the date of the Transfer of Account Balances, TLC and the
TLC 401(k) Plan shall assume all liabilities for all accrued benefits under the
Staff Builders 401(k) Plan for the TLC Employees that are transferred to the TLC
401(k) Plan, and the Staff Builders 401(k) Plan shall be relieved of all
liabilities for all such transferred benefits.
(d) The TLC 401(k) Plan shall provide the following:
1. that TLC Employees shall participate in the TLC 401(k) Plan
to the extent that they were eligible to participate in the Staff Builders
401(k) Plan immediately prior to the Distribution Date, and shall receive credit
for eligibility, vesting, and benefit accrual for all service credited for such
purposes under the Staff Builders 401(k) Plan;
2. that the compensation paid by Staff Builders to the TLC
Employees that was recognized under the Staff Builders 401(k) Plan shall be
credited for all applicable purposes under the TLC 401(k) Plan; and
3. that with respect to any amounts transferred from the Staff
Builders 401(k) Plan, the TLC 401(k) Plan will preserve any benefits, rights and
features protected under Section 411(d)(6) of the Internal Revenue Code
("Code").
2.2 Establishment of TLC Welfare Plans
(a) Effective upon the Distribution Date, TLC shall adopt, or cause
to be adopted, welfare plans ("TLC Welfare Plans") substantially the same in all
material respects to the corresponding plans offered by Staff Builders as of the
Distribution Date, as set forth on Exhibit 1.
3
4
2.3 COBRA
Effective as of the Distribution Date, TLC shall assume any and all
liability and responsibility for providing continuation of health care coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") to
any TLC Employee, and any former employee of Staff Builders, except former
employees of Chelsea Computer Consultants, Inc. and/or its subsidiaries
("Chelsea Employees") and ATC Healthcare Services, Inc. and/or its subsidiaries
("ATC Employees") and any qualified beneficiaries with respect to any such
employee (collectively "COBRA Eligible Employees"), whether or not such
continuation coverage obligations arose under any Staff Builders Welfare Plan,
and Staff Builders shall have no further liability or responsibility to provide
continuation of health care coverage to any COBRA Eligible Employee.
2.4 Establishment of TLC stock plans
(a) Effective upon the Distribution Date, TLC shall adopt, or cause
to be adopted a stock option plan ("TLC Stock Option Plan") substantially the
same in all material respects to the 1998 Staff Builders Stock Option Plan as in
effect on that date.
(b) On the day after the Distribution Date, TLC shall grant options
to purchase shares of TLC common stock under the TLC Stock Option Plan to each
of the individuals named on Exhibit 2 hereto. TLC shall grant to each such
individual options to purchase the number of shares of TLC common stock set
forth opposite such individual's name on Exhibit 2. All options so granted shall
be non-qualified and shall be exercisable during the period beginning six months
after the date of grant and ending ten years from the date of grant, subject to
early termination of the exercise period as provided in the TLC Stock Option
Plan. The per share exercise price of these options will be equal to the average
of the closing bid and asked prices of TLC common stock on the Distribution
Date, as quoted on the OTC Bulletin Board. Such options shall have such other
terms and conditions as are the same for the options granted by Staff Builders
under the 1998 Staff Builders Stock Option Plan.
(c) Staff Builders shall not make any adjustments, by reason of the
Distribution, to the number or exercise price of options held under any option
plan of Staff Builders in effect on the Distribution Date by individuals who
become employees of TLC on the Distribution Date.
2.5 Cooperation
Staff Builders and TLC agree to provide each other with all records and
information necessary or useful to carry out their obligations under this
Agreement, and to cooperate in the filing of documents required by the transfer
of assets and liabilities described herein and to take any other actions
necessary or advisable to meet any statutory, regulatory or contractual
requirements under this Agreement.
4
5
SECTION 3 - INDEMNIFICATION
3.1 Indemnification
(a) TLC agrees to indemnify and hold harmless Staff Builders, its
subsidiaries and affiliates, their officers, directors, employees, agents, and
fiduciaries from and against any and all costs, damages, losses, expenses
(including reasonable attorneys fees and costs) and other liabilities arising
out of or related to the TLC Welfare Plans, the TLC 401(k) Plan, and the TLC
Stock Option Plan (collectively referred to as the "TLC Plans") with respect to
TLC Employees and/or COBRA Eligible Employees and from any liability relating to
any applicable taxes or penalties arising from the failure of the TLC 401(k)
Plan to be qualified under Section 401(a) of the Code at the time of the asset
transfer other than any failure attributable to the terms or operation of the
Staff Builders 401(k) Plan prior to the asset transfer.
(b) Staff Builders agrees to indemnify and hold harmless TLC and
its affiliates, their officers, directors, employees, agents, and fiduciaries
from and against any and all costs, damages, losses, expenses (including
reasonable attorneys fees and costs) and other liabilities arising out of or
related to the Staff Builders Plans; arising out of the determination of the
accrued benefits to be transferred to the TLC 401(k) Plan; the determination of
book reserves or salary deduction liabilities with respect to the TLC Employees
under and from the Staff Builders Plans; any claims under the Staff Builders
Plans which are not attributable to TLC Employees and/or assumed by TLC under
this Agreement; and any liability relating to the applicable taxes or penalties
arising from the failure of the TLC 401(k) Plan to be qualified under Section
401(a) of the Code due to the terms or operation of the Staff Builders 401(k)
Plan prior to the date the assets are transferred.
3.2 Health and Welfare Benefit Claims
Except as provided in Section 3.1, TLC agrees that it shall assume and
be solely responsible for all liabilities and obligations of Staff Builders in
connection with the claims for benefits brought by or on behalf of TLC Employees
under the Staff Builders Welfare Plans, and Staff Builders shall cease to have
any such liabilities or obligation related to such claims.
SECTION 4 - MISCELLANEOUS
4.1 Notices
Notices hereunder shall be effective if given in writing and delivered
or mailed, postage prepaid, by registered or certified mail to:
If to Staff Builders:
STAFF BUILDERS, INC.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, President
5
6
If to TLC:
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, President
4.2 Amendments; Waivers
This Agreement may be amended or modified only in writing executed on
behalf of Staff Builders and TLC. No waiver shall operate to waive any further
or future act and no failure to object or forbearance shall operate as a waiver.
4.3 No Third Party Beneficiary
This Agreement is solely between Staff Builders and TLC, and nothing
herein, whether expressed or implied, shall confer any rights or remedies on any
employee of Staff Builders or TLC, any former employee of Staff Builders, or any
other person.
4.4 Entire Agreement
This Agreement constitutes the sole and entire agreement and
understanding between the parties with respect to the matters covered hereby.
Any amendment, modification, or termination of this Agreement must be in writing
and must be signed by both parties.
4.5 Governing Law
This Agreement shall be governed by the laws of the State of New York,
except to the extent preempted by the Employee Retirement Income Security Act of
1974, as amended.
4.6 Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns, provided that
this Agreement and the rights and obligations contained herein or in any exhibit
or schedule hereto shall not be assignable, in whole or in part, without the
prior written consent of the parties hereto and any attempt to effect any such
assignment without such consent shall be void.
6
7
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their authorized representatives as of the Effective Date
STAFF BUILDERS, INC.
By:
------------------------------------
Title:
---------------------------------
TENDER LOVING CARE HEALTHCARE
SERVICES, INC.
By:
------------------------------------
Title:
---------------------------------
7
8
EXHIBIT 1
STAFF BUILDERS WELFARE PLANS
Staff Builders Group Health Plan
MetLife DentalPrudential Dental
Aetna Life & AD&D
Aetna LTD
Staff Builders Cafeteria Plan
Cap District- Albany Medical Plan
Health Care Plan - Buffalo
Independent Health - Buffalo
Community Blue - Buffalo
North Americare - Buffalo
United Health Care - Syracuse
First Priority - Xxxxxx Barre
Personal Choice - Independence Blue Cross
Aetna-US Healthcare
United Health Care - Edwardsville
Regence Blue Cross - Washington
8
9
EXHIBIT 2
THE OPTION GRANTS
Name of Grantee Number of Options
--------------- -----------------
Xxxx X. Xxxxx 500,000
Xxxxxxx Xxxxxxxx 400,000
Xxxxx Xxxxxxxx 300,000
Xxxxxx Xxxxxxxx 100,000
Will Xxxx 75,000
Xxxxx Silver 50,000
Xxxx XxXxxxxxxx 50,000
Xxxxx Xxxxxx 50,000
Xxxx Xxxxxx 50,000
Xxxxx Xxxxxxxxx 50,000
Xxxxxxxx Xxxx 40,000
Xxxxx Xxxxx 40,000
Xxx Xxxxxx 30,000
Xxxxxxx Xxxxx 20,000
Xxxxx Xxxxxx 20,000
Xxxx Xxxxxxxxx 20,000
Xxxxxx Xxxx 15,000
Xxxxxxx Xxxxxx 15,000
Xxxxxxxx Xxxxxxx 15,000
Xxx Xxxxxxx 10,000
9
10
Xxxx Xxxxxxx 10,000
Xxxxxxx Xxxxxx 10,000
Xxxxxx Xxxxxxx 10,000
Xxxxx Xxxxxxxxxx 10,000
Xxxx Xxxxxxx 10,000
Xxxxx Xxxxx 10,000
Xxxxx Xxxxx 10,000
Xxxx Xxxxxxxxx 10,000
Xxxxx Xxxxxxxx 10,000
Xxxxxxx Xxxxxxxx 7,500
Xxxx Xxxxxxx 5,000
Xxxxx Xxxxxx 5,000
Xxxxx XxXxxx 5,000
Xxxx Xxxxx 5,000
Xxxxxxx Xxxxx 5,000
Xxxx Xxxxxx 3,750
Xxxxx Xxxxxx 3,750
Xxxx Xxxxxxxx 3,000
Xxx Aurricchio 3,000
Xxxx Xxxxx 2,500
Xxxxx Cute 2,500
Xx XxXxxxxxxx 2,500
Xxxxx Xxxxxx 2,500
Billing Employee 1 2,500
10
11
Billing Employee 2 2,500
Billing Employee 3 2,500
Billing Employee 4 2,500
Xxxxxxx Xxxxxxxx 1,500
Xxxxx Xxxxxxx 3,000
Xxx Xxxxx 1,500
Xxxxxxxx Csialldone 1,000
Xxxxx Xxxxxx 1,250
Xxxxxx Xxxx 1,250
Xxxxxxxx Xxxxxx 3,000
Xxxxxxx Xxxxxxx 1,000
Xxxxxx Xxxxxxx 1,500
11
