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Exhibit 10.13
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Employment Agreement") is dated this 6th
day of February, 2001, between RES-CARE, INC., a Kentucky corporation (the
"Company"), and XXXXXXX X. XXXXX (the "Employee").
RECITALS:
WHEREAS, the Employee has been employed by the Company since September
1, 1989, and the services of the Employee, his managerial experience, and his
knowledge of the affairs of the Company are of great value to the Company;
WHEREAS, the Company and the Employee entered into an Employment
Agreement dated as of January 1, 1997, as amended by those certain letter
agreements dated August 4, 1997 and October 1, 1998 (collectively, the "Prior
Agreement");
WHEREAS, the initial term of the Prior Agreement expired on December
31, 1999 and the term of the Prior Agreement was extended for an additional
year, expiring on December 31, 2000;
WHEREAS, the Employee possesses substantial knowledge of the business
and affairs of the Company, its policies, methods, personnel and plans for the
future;
WHEREAS, the Board of Directors of the Company recognizes that the
Employee's contribution to the growth and success of the Company has been
substantial and wishes to offer an inducement to the Employee to remain in the
employ of the Company; and
WHEREAS, the Company and the Employee desire to supersede the Prior
Agreement, effective on the Commencement Date (as defined below), by executing
this Employment Agreement and agreeing to be bound by the terms thereof.
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 effective January 1, 2001 (the
"Commencement Date"), 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
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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 PRESIDENT OF DIVISION FOR PERSONS WITH
DISABILITIES. During the Term, the Employee shall serve as the
President of the Division for Persons with Disabilities of the Company.
The Employee shall, subject to the supervision and control of the
Chairman, President and Chief Executive Officer of the Company
("Chairman") and the Board of Directors of the Company (the "Board")
perform such other duties and exercise such powers over and with regard
to the business of the Company's Division for Persons with Disabilities
as are presently being performed and exercised by him and such
additional duties which are similar in nature and responsibility to
those presently being performed by the Employee as may be prescribed
from time to time by the Chairman or the Board, 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.
(b) TIME AND EFFORT. The Employee shall devote his best
efforts and all of his 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 his
personal assets in such form or manner as will not require his 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 him to continue to maintain his 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 Chairman and/or any other authorized officer designated
by the Company a certificate of the Employee's level of compliance with
applicable laws, regulations and Company policies regarding the
provision of services to clients and xxxxxxxx to its paying agencies (a
"Compliance Certificate"). Each such Compliance Certificate requested
by the Company shall be completed and delivered by the Employee to the
officer of the Company requesting the same within two (2) days after
the date of such request.
3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. For the period immediately prior to the
Commencement Date, the Employee's Base Salary under the Prior Agreement
was an annual amount of $158,862.60 (the "Previous Salary"). If the
Prior Agreement had been automatically extended effective January 1,
2001, the Employee would have been entitled to an increase in the
Previous Salary as provided in the second literary paragraph of Section
3 of the Prior Agreement, which increase is not yet susceptible of
calculation. Such Previous Salary, as it would have been so increased,
is hereinafter referred to as the "Initial Base
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Salary". The Company shall pay to the Employee during the Term an
annual salary (the "Base Salary"), which initially shall be equal to
the Initial Base Salary. Commencing effective March 1, 2001, the Base
Salary shall be increased to $265,000. 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 that this Employment Agreement or Employee's
employment hereunder shall not have been terminated for any reason, 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
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) OPERATIONAL INCENTIVE PROGRAM. During the Term, the
Employee shall participate in the Operational Incentive Program
established by the Chairman on an annual basis (the "Incentive
Program"). A copy of such Incentive Program that has been established
for the calendar year 2001 is attached hereto as Exhibit A. Any
modification to the terms of the Incentive Program by the Company shall
be effective prospectively only and a copy of such modified program
shall be furnished to the Employee prior to the effective date of such
modification. 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 fifty percent (50%) of the Base Salary actually paid to the
Employee for the calendar quarter for which the incentive is
determined. Any quarterly operational 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 "Operational 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. The Company
reserves the right to amend, modify or terminate in their entirety any
of such programs and plans.
(d) STOCK OPTION GRANT. As an inducement for the execution of
this Employment Agreement by the Employee, on March 8, 2001 (the "Grant
Date"), the Employee shall be granted options to purchase 50,000 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
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managerial employees (the "Stock Plan"). Twenty percent (20%) of such
stock options shall vest and be exercisable on the Grant Date. 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 the Grant Date (with such number of
shares to be 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 Grant Date.
(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) Existing Loan. On April 14, 2000, the Company
loaned the Employee the principal sum of $100,000 (the
"Existing Loan"), and the Employee executed and delivered to
the Company a Promissory Note (the "Existing Note") and the
Company and the Employee executed a letter agreement relating
to the Existing Note (the "Existing Loan Agreement"). As set
forth more fully in the Existing Note and Existing Loan
Agreement, on April 1 of each year, commencing April 1, 2001,
provided Employee then remains a full-time employee of the
Company and has satisfied the tax withholding requirements in
the Existing Loan Agreement, the outstanding principal balance
of the Existing Note will be reduced by $25,000 and the
aggregate amount of interest accrued but unpaid on such amount
of principal reduction shall be reduced and forgiven by the
Company. The Company and the Employee acknowledge that the
terms and conditions of the Existing Note and Existing Loan
Agreement remain in full force and effect, except as
specifically modified by the last sentence of Section 5(d)
hereof. Any reductions and forgiveness of the Existing Loan
shall be deemed a compensation bonus to the Employee under
this Employment Agreement.
(ii) Additional Loan. On March 1, 2001, the Company
will loan to the Employee the additional principal sum of
$100,000, and the Employee will execute and deliver to the
Company the Promissory Note in the form attached hereto as
Exhibit B (the "Additional Note") and the Company and the
Employee will execute and deliver a letter agreement relating
to the Additional Note in the form attached hereto as Exhibit
C (the "Additional Loan Agreement"). As set forth more fully
in the Additional Note and the Additional Loan Agreement, on
the last day of each calendar month, commencing March 31,
2001, provided Employee then remains a full-time employee of
the Company and has satisfied the tax withholding requirements
in the Additional Loan Agreement, the outstanding principal
balance of the Additional Note will be reduced by $2,941.18
and the aggregate amount of interest accrued but unpaid on
such amount of principal reduction shall be reduced and
forgiven by the Company. Any reductions and forgiveness of the
Additional Loan shall be deemed a compensation bonus to the
Employee under this Employment Agreement.
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(iii) Educational Expenses. Employee is enrolled in
the two (2) year Masters of Business Administration Program at
Vanderbilt University. Employee's enrollment and participation
in such program shall be eligible for reimbursement under the
Company's tuition reimbursement plan, subject to all of the
customary rules and restrictions of such plan, except that the
limitation on maximum reimbursement under such plan shall be
increased to $50,000 per calendar year.
(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 him 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
(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 he will treat all of the amounts payable
pursuant to this Employment Agreement as compensation for income tax
purposes. The Employee further agrees to comply with his withholding
obligations in the Existing Loan Agreement and the Additional Loan
Agreement.
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 his 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 his duties hereunder for
180 days. "Permanent disability" for purposes of this Employment
Agreement shall mean the
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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, subject
to 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 personal dishonesty, intentional
misconduct, breach of fiduciary duty involving personal profit, failure
to perform his duties hereunder, conviction of, or plea of nolo
contendere to, any law, rule or regulation (other than traffic
violations or similar offenses) or breach of any 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 Chairman, Employee may voluntarily
terminate his 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 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 his death, the date of his 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 his 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.
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5. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) DEATH. If the Employee's employment is terminated by
reason of his death during the Term, the Employee shall continue to
receive installments of his then current Base Salary until the date of
his death, shall receive any earned but unpaid Operational Incentive
for any calendar quarter ending prior to the date of his death and the
entire remaining principal balance and all accrued and unpaid interest
on the Existing Note and the Additional Note shall be forgiven by the
Company and deemed paid.
(b) DISABILITY. If the Employee's employment is terminated by
reason of his disability during the Term, the Employee shall continue
to receive installments of his 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
his 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 Operational Incentive for any calendar quarter prior
to the Date of Termination and the entire remaining principal balance
and all accrued and unpaid interest on the Existing Note and the
Additional Note shall be forgiven by the Company and deemed paid. 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 his then
current Base Salary only through the Date of Termination and the
Employee shall not be entitled to receive any Operational Incentive
(other than any earned but unpaid Operational 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, the Employee shall continue to receive installments of
his then current Base Salary until the Date of Termination and for one
(1) year thereafter and shall also be entitled to receive any earned
but unpaid Operational Incentive for any calendar quarter ending prior
to the Date of Termination. In addition, if the Employee's employment
is terminated without Cause, the entire remaining principal balance and
all accrued and unpaid interest on the Existing Note and the Additional
Note shall be forgiven by the Company and deemed paid as additional
severance to the Employee.
(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 his then current Base
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Salary until the Date of Termination and the Company shall pay the
Employee any earned Operational 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 his then current Base Salary until
the Date of Termination and the Employee shall not be entitled to
receive any Operational Incentive (other than any earned but unpaid
Operational 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
his 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, 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 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) his
services hereunder are of a special, unique and extraordinary character
and that his position with the Company places him in a position of
confidence and trust with the operations of the Company, its
subsidiaries and affiliates (collectively, the "Res-Care Companies")
and allows him access to Confidential Information, (ii) the Company has
provided Employee with a unique opportunity as the President of the
Company's Division for Persons with Disabilities, (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
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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 Commencement Date, he will not
directly or indirectly disclose or use or otherwise exploit for his 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 his duties hereunder, any Confidential Information, and
(ii) commencing on the Date of Termination, he will not disparage or
comment negatively about any of the Res-Care Companies, or their
respective officers, directors, employees, policies or practices, and
he 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 he will not, directly or indirectly, from the Commencement Date
until the Date of Termination, and for a period of eighteen (18) months
thereafter, directly or indirectly (i) offer employment to, hire,
solicit, divert or appropriate to himself 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 twelve (12) 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 Employee further agrees
that from the Commencement Date until the Date of Termination, he 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 4 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
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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, 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;
(7) software and any other confidential
technical programs;
(8) personnel information, employee
payroll and benefits data;
(9) accounts receivable and accounts
payable;
(10) other 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.
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(e) INJUNCTIVE RELIEF, INVALIDITY OF ANY PROVISION. Employee
acknowledges that his 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, he 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,
its Exhibits, the Existing Note, the Existing Loan Agreement, the Additional
Note and the Additional Loan Agreement constitute the entire agreement between
the parties pertaining to the subject matter contained in them and supersede all
prior and contemporaneous agreements, representations, and understandings of the
parties, including but not limited to the Prior Agreement. 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 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 him.
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):
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TO THE COMPANY:
--------------
ResCare, Inc.
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx,
Chairman, President and Chief Executive Officer
TO THE EMPLOYEE:
---------------
Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 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.
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.
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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
-------------------------------------
Xxxxxxx X. Xxxxx
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EXHIBIT A
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OPERATIONAL INCENTIVE PROGRAM
FOR XXXXXXX X. XXXXX
The following is the incentive plan for Xxxxxxx X. Xxxxx, President of the
Division for Persons with Disabilities ("Cross"), for the year 2001.
The program is based on what the Company and Cross feel are the most important
controllables of Cross.
This part of the incentive is for specific operation performance. The amounts
here relate to Cross' eligibility. To be eligible, the target for the entire
Division (on average) must be met. If the operation does not hit financial
target, Cross is still eligible, but at a reduced rate, if within the identified
range.
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Category
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1. ResCare Quality Way Documentation provided that program requirements were
implemented during the quarter in all of the
Division. (100% compliance required)
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2. Best In Class 85% average for entire Division (Q-1 & Q-2 2001)
95% average for entire Division (Q-3 & Q-4 2001)
75% average for entire Division (Q-3 on) on Level 2
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3. External Reviews No punitive action enforced, no fines,
moratoriums, conditions of participation out or
vendor holds during quarter for the entire Division.
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4. DSO Meet the cumulative number of all operations in the
Division for the quarter.
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Each category will contribute 25% toward the potential financial incentive.
The amount identified is: 50% of salary max. This will be calculated on a
quarterly basis, so the annual maximum would be 50% total for the year.
If the Division does not meet financial target, but is at 90% or better of
target, Cross is eligible for 40% of the maximum potential financial incentive.
