1
Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Employment Agreement") is dated this 14th
day of February, 2001, between RES-CARE, INC., a Kentucky corporation (the
"Company"), and XXXXX X. XXXXXXXXX, XX. (the "Employee").
RECITALS:
WHEREAS, the Employee has been employed by the Company since June 1995,
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, 1998, as amended on August 15, 1998
(collectively, the "Prior Agreement");
WHEREAS, the initial term of the Prior Agreement expired 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
notice to the other stating that the term of this Employment Agreement shall not
be extended.
2
For purposes of this Employment Agreement, the term "Term" shall mean the
Initial Term plus all Additional Terms.
2. DUTIES.
(a) TEMPORARY DUTIES AS CHIEF FINANCIAL OFFICER; EMPLOYMENT AS
EXECUTIVE VICE PRESIDENT OF OPERATIONS OF DIVISION FOR PERSONS WITH
DISABILITIES. During the period January 1, 2001 through the effective
date of the Company's Form 10-K as filed with the Securities and
Exchange Commission, the Employee shall continue to serve as the Chief
Financial Officer of the Company. During such period, 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 financial
matters of the Company and its subsidiaries 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. During the Term (including the period the Employee
continues to serve as Chief Financial Officer), the Employee shall
serve as the Executive Vice President of Operations of the Division for
Persons with Disabilities of the Company. The Employee shall, subject
to the supervision of the President of the Division for Persons with
Disabilities of the Company ("President"), be responsible for the
day-to-day management and oversight of the Company's Division for
Persons with Disabilities. In addition, during the Term, the Employee's
duties shall also include 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) 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, Discrimination and
Violence in the Workplace. This statement shall state that the Employee
is not aware of any such violation by other
2
3
employees, independent contractors, vendors, or other individuals
performing services for the Company and its subsidiaries that they did
not report as appropriate.
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 $159,185 (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 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 $210,000. 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 forty percent (40%) 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."
3
4
(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 35,000 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 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) 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) 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.
4
5
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.
(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,
5
6
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 Operational Incentive
for any calendar quarter 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 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. 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.
6
7
(e) EXPIRATION OF TERM. If the Employee's employment shall be
terminated by reason of expiration of the Term by reason of Employee's
election not to extend 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
Operational Incentive for any calendar quarter ending prior to the Date
of Termination. If the Employee's employment shall be terminated by
reason of expiration of the Term by reason of the Company's election
not to extend the Term, 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.
(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 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 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
8
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 Executive Vice
President of Operations 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 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:
8
9
(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;
(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;
9
10
(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 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
and its Exhibit 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,
10
11
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:
---------------
ResCare, Inc.
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx,
Chairman, President and Chief Executive Officer
To the Employee:
----------------
Xxxxx X. Xxxxxxxxx, Xx.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxxxx, 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.
11
12
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
-----------------------------------
Xxxxx X. Xxxxxxxxx, Xx.
12
13
EXHIBIT A
---------
OPERATIONAL INCENTIVE PROGRAM
FOR XXXXX X. XXXXXXXXX, XX.
The following is the incentive plan for Xxxxx X. Xxxxxxxxx, Xx., Executive Vice
President of Operations of the Division for Persons with Disabilities
("Gronefeld"), for the year 2001.
The program is based on what the Company and Gronefeld feel are the most
important controllables of Gronefeld.
This part of the incentive is for specific operation performance. The amounts
here relate to Gronefeld's eligibility. To be eligible, the target for the
entire Division (on average) must be met. If the operation does not hit
financial target, Gronefeld is still eligible, but at a reduced rate, if within
the identified range.
-------------------------------------------------------------------------------
Category
-------------------------------------------------------------------------------
1. ResCare Quality Documentation provided that program requirements were
Way implemented during the quarter in all of the
Division. (100% compliance required)
-------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------
3. External Reviews No punitive action enforced, no fines,
moratoriums, conditions of participation out or
vendor holds during quarter for the entire Division.
-------------------------------------------------------------------------------
4. DSO Meet the cumulative number of all operations in the
Division for the quarter.
-------------------------------------------------------------------------------
Each category will contribute 25% toward the potential financial incentive.
The amount identified is: 40% of salary max. This will be calculated on a
quarterly basis, so the annual maximum would be 40% total for the year.
If the Division does not meet financial target, but is at 90% or better of
target, Gronefeld is eligible for 40% of the maximum potential financial
incentive.
