EXHIBIT 10.91
CORAM MANAGEMENT INCENTIVE PROGRAM AGREEMENT
This Management Incentive Program Agreement ("Agreement") is made and
effective as of the Effective Date, as defined below, by and between Coram, Inc.
(the "Company") and Xxxxx X. Xxxxxxxx (the "Participant").
WHEREAS, the Company and its parent, Coram Healthcare Corporation
("CHC"), filed for relief under Chapter 11 of Title 11 of the United States Code
in the United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court") which cases are jointly administered under In re Coram
Healthcare Corporation, Case No. 00-3299 (MFW) (Jointly Administered) and are
intending to complete their financial restructuring and reorganization through a
plan or plans of reorganization (the "Plan(s) of Reorganization"); and
WHEREAS, Xxxxx X. Xxxxx was appointed Chapter 11 Trustee for the
Company and CHC (the "Trustee") which appointment was approved by the Bankruptcy
Court on March 7, 2002; and
WHEREAS, the Company and the Trustee desire to enter into this
Agreement to retain the Participant through the successful completion of the
Plan(s) of Reorganization and Participant is willing to remain in such
employment by the Company in consideration of the payments to be made by the
Company, upon the terms and conditions herein provided;
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties to this Agreement, intending to be legally bound, hereby agree as
follows:
SECTION 1. SERVICES OF PARTICIPANT.
Throughout his or her employment by the Company, the Participant shall
devote his or her full time and attention to performing the duties and
responsibilities of his or her current position in accordance with his or her
job description and as assigned by his or her supervisor or the Chief Executive
Officer of the Company or the Trustee. Such duties shall include providing his
or her assistance in connection with the completion of the contemplated Plan(s)
of Reorganization as may be requested by the Company from time to time.
SECTION 2. EFFECTIVE DATE.
The "Effective Date" shall be the date that an Order of the Bankruptcy
Court approving the Company's 2001 Management Incentive Program ("MIP") and
payments provided for therein becomes final.
SECTION 3. MIP INCENTIVE COMPENSATION.
(a) The Participant shall be entitled to receive MIP Incentive
Compensation in the amount of $200,000 pursuant to the terms and conditions of
the MIP, subject to the approval by the Bankruptcy Court (the "Incentive
Compensation") and if so approved shall be paid by the Company on the Effective
Date or as soon as practicable thereafter; provided however, that if the
Participant ceases to be employed by the Company before six (6) months have
elapsed from the Effective Date due to his or her voluntary termination or his
or her being terminated by the Company "for cause", then the Participant shall
be obligated to return the full amount of the Incentive Compensation (less
applicable federal, state and local taxes withheld) to the Company immediately
upon the date of his or her termination.
(b) For the purpose of this Agreement, "for cause" shall mean (i)
commission of a willful act of dishonesty in the course of Participant's duties
which injures the Company or CHC, (ii) conviction by a court of competent
jurisdiction of a crime constituting a felony or conviction in respect of any
act involving fraud, dishonesty, or moral turpitude which relates to
Participant's duties, (iii) Participant's continued, habitual intoxication or
performance under the influence of controlled substances during working hours,
and (iv) unjustifiable failure by Participant to perform his or her duties which
injuries the Company, CHC or their respective affiliates.
SECTION 4. CONFIDENTIALITY.
(a) The Participant agrees not to disclose the terms and conditions of
this Agreement. The Participant may, however, disclose this Agreement to the
Participant's immediate family, legal counsel, tax advisor, and tax authorities
as necessary, provided that they agree not to disclose the terms and conditions
to anyone.
(b) For purposes of this Section 4, "Confidential Information" shall
mean all confidential and proprietary technical, business and financial
information of the Company, CHC and their respective affiliates, including, but
not limited to, marketing and financial information, personnel, sales and
statistical data, plans for future development, computer programs, information
and knowledge pertaining to products and services offered, trade secrets,
proprietary information, advertising, sales methods and systems, sales and
profit figures, customer and client lists, and relationships between the Company
or CHC and their respective affiliates, customers, clients, suppliers and others
who have business dealings with the Company or CHC and their respective
affiliates, information with respect to various techniques, procedures,
processes and methods and any other information acquired, used or developed by
Participant while employed by the Company.
(c) Participant recognizes and acknowledges that by reason of his or
her employment by and service to the Company, he or she has had and will
continue to have access to Confidential Information. Participant acknowledges
that such Confidential Information is a valuable and unique asset and agrees
that he or she will not, either while employed by the Company or thereafter, use
any Confidential Information for his or her own benefit or the benefit of others
or disclose any Confidential Information to any person, firm or company not
connected with the Company for any reason whatsoever except (i) as his or her
duties as an employee may require, (ii) as authorized in writing by the Trustee,
or if no Trustee is serving, by the Board of Directors of the Company, or (iii)
to the extent necessary to comply with law or the valid order of a court of
competent jurisdiction, in which event Participant shall notify the Company and
CHC as promptly as practicable (and, in any event, prior to making such
disclosure). Participant shall use his or her best efforts to prevent any such
disclosure by others.
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(d) Notwithstanding the foregoing, Participant shall be relieved of his
or her responsibilities under this Section 4 with respect to any Confidential
Information (i) which is in the public domain through no fault of Participant or
(ii) which the Participant can demonstrate by clear and convincing evidence was
legally obtained from a third party which did not learn it, directly or
indirectly, from Participant or any other person bound to maintain the
confidentiality thereof or the Company. All documents, magnetic media and other
materials containing Confidential Information made or compiled by or made
available to Participant during the course of his or her employment, and all
copies thereof, are and shall be the property of the Company and shall be
delivered to the Company by Participant immediately upon the termination of his
or her employment.
(e) The obligations under this Section 4 shall remain in effect and be
binding upon the Participant following termination of the Participant's
employment for any reason whatsoever.
SECTION 5. AGREEMENT NOT TO SOLICIT EMPLOYEES.
During the Participant's employment with the Company and for a period
of one (1) year following the termination of such employment for any reason
whatsoever, provided the Company is not in breach or default hereof, the
Participant shall not directly or indirectly, solicit, divert or hire, employees
of the Company, CHC or their affiliates.
SECTION 6. AGREEMENT NOT TO SOLICIT COMPANY CLIENTS.
During the Participant's employment with the Company and for a period
of one (1) year following the termination of such employment for any reason
whatsoever, provided the Company is not in breach or default hereof, the
Participant shall not directly or indirectly, contact, solicit, divert, take
away or attempt to solicit, divert, or take away any Client. "Client" shall mean
any person, corporation, partnership, entity or legal organization to whom the
Company, CHC or their affiliates sold their services or products or solicited to
sell their services or products during the twelve (12) months prior to the
termination of Participant's employment.
SECTION 7. AGREEMENT NOT TO COMPETE.
(a) Participant acknowledges that he or she is an executive, director
or a manager for the Company and as such, has worked closely with information
which represents vital trade secrets and Confidential Information of the
Company, CHC and their affiliates. Participant further acknowledges that, should
Participant perform work or services for a Competing Business, as defined below,
(in any capacity including, but not limited to, as an employee, officer, agent,
consultant or independent contractor), Participant necessarily would rely on or
inevitably disclose such information. As a result, Participant agrees that,
during the Participant's employment and for a period of one (1) year following
the termination of such employment for any reason whatsoever, provided the
Company is not in breach or default hereof, the Participant shall not (except
with the prior written consent of the Trustee, or if no Trustee is serving, of
the Company), within the Restricted Territory, as defined below, either directly
or indirectly, on Participant's own behalf or in the service or on behalf of
others, as an employee, officer, agent, consultant, or independent contractor,
or in another capacity which involves
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duties and responsibilities similar to those the Participant has undertaken for
the Company, engage in any Competing Business.
(b) As used in this Agreement, "Restricted Territory" means the
geographic region over which the Participant has responsibility as of the date
of Participant's termination. As used in this Agreement, "Competing Business"
means any business organization of whatever form engaged in any business or
enterprise which in whole or in part is the same as, or substantially the same
as, the business of the Company, CHC or their affiliates.
SECTION 8. SEVERABILITY.
If, at the time of enforcement of Sections 4, 5, 6, and/or 7 herein a
court shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
SECTION 9. NOT A CONTRACT OF EMPLOYMENT.
BY PARTICIPANT'S SIGNATURE BELOW, SUBJECT TO PARAGRAPH 12, PARTICIPANT
ACKNOWLEDGES THAT EMPLOYMENT WITH THE COMPANY IS AT-WILL, MEANING THE
PARTICIPANT OR THE COMPANY MAY TERMINATE THAT EMPLOYMENT RELATIONSHIP AT ANY
TIME WITHOUT NOTICE, CAUSE, OR ANY SPECIFIC DISCIPLINARY PROCEDURES. NOTHING IN
THIS AGREEMENT OR ANY OTHER POLICY, PRACTICE, PROCEDURE, OR BENEFIT OF THE
COMPANY CONSTITUTES AN EXPRESS OR IMPLIED CONTRACT, GUARANTEE, PROMISE, OR
COVENANT OF EMPLOYMENT FOR A SPECIFIED TERM OR FOR TERMINATION ONLY FOR CAUSE.
SECTION 10. GOVERNING LAW/VENUE.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Colorado. Jurisdiction and venue over
any dispute involving the enforcement or construction of this Agreement shall be
in the United States District Court for the District of Colorado, Denver
District Court, or the Bankruptcy Court.
SECTION 11. BINDING AGREEMENT.
Participant may not assign this Agreement, and any attempted assignment
shall be void and of no force or effect. This Agreement shall be effective as of
the date hereof and shall be binding upon and inure to the benefit of the
Participant, Participant's heirs, personal and legal representatives, or
guardians. The obligations of the Company under this Agreement shall inure to
the benefit of and shall be binding upon any successor and assign of the
Company. The rights of the Company, CHC and their affiliates under this
Agreement shall inure to the benefit of any successors and assigns and the
Trustee and his successors and assigns.
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SECTION 12. ENTIRE AGREEMENT.
This Agreement supersedes any and all prior arrangements,
understandings or agreements, whether written or oral, solely with respect to
(i) the payment of any management incentive program bonus, including the MIP,
and (ii) any Key Employee Retention Plan pending before the Bankruptcy Court.
However, this Agreement is not intended to (a) supersede any other written
agreements between the parties with respect to the employment of the Participant
or the terms or conditions set forth therein, or (b) effect a waiver of the
Participant's rights to later seek an Order from the Bankruptcy Court
authorizing payment of the balance of the Participant's unpaid 2001 MIP.
SECTION 13. AMENDMENTS.
This Agreement may not be amended or modified except by a written
instrument signed by the Company and the Participant and approved by the
Trustee.
SECTION 14. NOTICES.
Any notices provided for by this Agreement shall be sufficient if in
writing and shall be deemed given when hand delivered or sent by registered or
certified mail to the Participant at the last residence address Participant has
filed in writing with the Company or, in the case of the Company, with its Legal
Department at the Denver, Colorado corporate offices, with a copy to the Trustee
c/o Schnader Xxxxxxxx Xxxxx & Xxxxx, LLP, 0000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
SECTION 15. WITHHOLDING.
All payments made by the Company to the Participant under this
Agreement shall be subject to applicable federal, state and local tax
withholding and 401(k) withholding.
IN WITNESS WHEREOF, the parties knowingly and voluntarily have
executed, sealed and delivered this Management Incentive Program Agreement as of
the date first above written.
PARTICIPANT CORAM, INC.
By: Xxxxx Xxxxxxxx By: /s/ XXXXXX X. XXXXXXX
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[Printed Name] Xxxxxx X. Xxxxxxx,
Chairman, President and Chief
Executive Officer
APPROVED BY:
XXXXX X. XXXXX, Chapter 11 Trustee
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Xxxxxx X. Xxxxxx,
Attorney for the Trustee
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