Exhibit 10.2
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Employment Agreement") is dated this 13th
day of January, 2002, between RES-CARE, INC., a Kentucky corporation (the
"Company"), and XXXXXXX X XXXXXXX (the "Employee").
RECITALS:
WHEREAS, the Company desires to reorganize its Division for Youth
Services with the result that such Division will include the Company's wholly
owned subsidiary Youthtrack, Inc. and the Company's Alternative Youth Services
Operations and the Company will create a new Division for Training Services that
will include the Company's Job Corps Operations and other training services
operations;
WHEREAS, the Employee has extensive experience in the management of
operations providing youth services and treatment, both adjudicated and
nonadjudicated;
WHEREAS, the Company desires to offer to Employee the opportunity to
serve as the President of the newly reorganized Division for Youth Services and
the Employee desires to accept such position; and
WHEREAS, the Company and the Employee desire to execute this Employment
Agreement to set forth the terms and conditions of Employee's employment by the
Company and agreeing to be bound by the terms hereof.
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 14, 2002 (the
"Commencement Date"), and ending on December 31, 2004, subject to earlier
termination only in accordance with the express provisions of this Employment
Agreement ("Initial Term"). At the option of the Company and with the consent of
the Employee, this Employment Agreement may be extended for successive periods
of one (1) year each (the "Additional Term(s)") on the same terms and
conditions. The Company's option to extend this Employment Agreement for any
Additional Term shall be exercisable by written notice to Employee no later than
sixty (60) days prior to the end of the Initial Term or any then effective
Additional Term. The Initial Term and any effective Additional Terms shall be
collectively referred to as the "Term."
2. DUTIES.
(a) EMPLOYMENT AS PRESIDENT OF DIVISION FOR YOUTH SERVICES.
During the Term, the Employee shall serve as the President of the
Division of Youth Services 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 duties and
exercise such powers over and with regard to the management of the
Company's Division for Youth Services as may be prescribed from time to
time by the Chairman, including, without limitation, serving as a
member of the ResCare Resource Center Leadership Team and serving as an
officer or director of one or more subsidiaries or affiliates of the
Company, if elected to such positions, without any further salary or
other compensation. As reorganized, the Company's Division for Youth
Services will include the Company's wholly owned subsidiary Youthtrack,
Inc. and the Company's Alternative Youth Services Operations.
(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; (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; and (iii)
continue to serve as a director of Setech, Inc., and with the prior
approval of the Chairman, may serve on one other outside board of
directors. The Employee agrees that none of such activities will
detract from his ability to perform his duties hereunder and none of
the activities of any of such entities will involve the provision of
services competitive with those offered by any of the Res-Care
Companies (as defined in Section 7(a) hereof).
(c) EMPLOYEE CERTIFICATION OF ELIGIBILITY. 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 (ResCare Annual
Employment Re-Certification Eligibility Form) confirming, to the best
of the Employee's knowledge, that the Employee remains eligible for
employment with the Company. This same certificate will certify that
the Employee has complied with applicable laws, regulations and Company
policies regarding the provision of services to clients and xxxxxxxx to
its paying agencies, Company policies on training, Drug and
Alcohol-Free Program, Prohibition of Harassment, Affirmative Action
Equal Employment Opportunity and Violence in the Workplace. This
statement shall state that the Employee is not aware of any such
violation by other employees, independent contractors, vendors, or
other individuals performing services for the Company and its
subsidiaries that they did not report as appropriate.
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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
$200,000. 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, 2003, 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) INCENTIVE PROGRAM. During the Term, the Employee shall be
eligible for incentive compensation in accordance with a written
incentive program mutually established by the Chairman 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 goals mutually
established by the Chairman and the Employee relating to the
performance (financial, compliance and otherwise) of the Division for
Youth Services 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
annually, 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 year 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 year for which the incentive is determined. Any annual
incentive earned by the Employee for any calendar year shall be paid by
the Company to the Employee not later than sixty (60) days after the
end of such calendar year. 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. The Company
reserves the right to amend, modify or terminate in their entirety any
of such programs and plans. The
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Company shall reimburse the Employee for the amount paid by him for
health insurance premiums for Cobra coverage under his former
employer's health insurance plan for the period from the Commencement
Date and the date Employee is eligible for coverage under the Company's
health insurance plan. The Employee shall submit requests for such
reimbursement monthly.
(d) STOCK OPTION GRANT. As an inducement for the execution of
this Employment Agreement by the Employee, on the Commencement 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 managerial
employees (the "Stock Plan"). Twenty-five percent (25%) of such stock
options shall vest and be exercisable on the Commencement Date.
Provided the Employee shall continue to be employed hereunder,
twenty-five percent (25%) of such stock options shall vest and be
exercisable on December 31, 2002, December 31, 2003 and December 31,
2004 (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 Commencement
Date (or if the Commencement Date is not a trading date for the Company
common stock, on the immediately preceding trading date).
(e) 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.
(f) OFFICE AT RESIDENCE. The Company acknowledges that certain
of the services of Employee that do not require meetings at offices of
the Company or travel may be rendered by Employee from an office
located at his residence (the "Home Office"). At the request of the
Employee, the Company will furnish to Employee for his use at the Home
Office during the Term a personal computer and printer and reimburse
Employee for the reasonable cost of the installation of the same, and
reimburse Employee for the monthly cost of a dedicated telephone line
to such Home Office. All of the assets so furnished to Employee shall
remain the Company's property. The Company shall not be required to
furnish to Employee an administrative assistant at such Home Office,
but shall provide Employee the assistance of an administrative
assistant from a pool of administrative assistants and shall provide
the use of an office when the Employee is at the ResCare Resource
Center. Employee's travel schedule shall be established in the
discretion of the Chairman.
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(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 and the reduction and forgiveness of any
portion of the Loan), 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.
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 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,
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.
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(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.
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 Performance Incentive
for any calendar year ending prior to the date of his death.
(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
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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
Performance Incentive for any calendar year 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 his then
current Base Salary only 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 year), and Employee 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 Performance Incentive for any calendar year ending prior to
the Date of Termination.
(e) EXPIRATION OF TERM. If the Employee's employment shall be
terminated by reason of expiration of the Term, the Employee shall
continue to receive installments of his then current Base Salary until
the Date of Termination and shall also be entitled to receive any
earned but unpaid Performance Incentive for any calendar year ending
prior to the Date of Termination.
(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 Performance Incentive (other than any earned but unpaid
Performance Incentive for any calendar year ending prior to the Date of
Termination), and Employee 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.
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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 an executed exit interview document as provided in
accordance with Company policy, 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 of the property described in Section 3(f)
hereof and 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 Company's President
of the Division for Youth Services, (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 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
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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 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;
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(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.
(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
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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
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, 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):
To the Company:
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ResCare, Inc.
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx,
Chairman, President and Chief Executive Officer
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To the Employee:
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Xxxxxxx X Xxxxxxx
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 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. NO CONFLICT; INDEMNIFICATION. Employee represents, warrants and
covenants to the Company that the execution of this Employment Agreement and the
performance by Employee of services for the Company as contemplated herein will
not violate any agreement or covenant to which the Employee is a party or is
bound, including but not limited to his any agreement with Children's
Comprehensive Services, Inc. The representations, warranties and covenants in
this Section 16 are a material condition to the execution of this Employment
Agreement and the obligations of the Company herein. During the Term, Employee
will perform his services hereunder in a manner that does not violate any such
agreement, including any confidentiality covenants contained therein. Employee
agrees to indemnify and hold harmless the Res-Care Companies from any breach of
the representations, warranties and covenants in this Section 16.
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17. SURVIVAL. The provisions of Sections 5, 6, 7 and 16 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:
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Xxxxxx X. Xxxxx
Chairman, President and Chief Executive
Officer
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Xxxxxxx X Xxxxxxx
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