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EXHIBIT 10.10
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
EMPLOYMENT AGREEMENT
WITH
XXXXXXX XXXXXXXX
AGREEMENT as of the 20th day of October, 1999, between Xxxxxxx
Xxxxxxxx, residing at 000 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("Executive"),
and TENDER LOVING CARE HEALTH CARE SERVICES, INC. ("Company" or "TLC"), a
Delaware corporation, having its principal place of business at 0000 Xxxxxx
Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, the Company wishes to secure the services of
Executive on the terms and conditions set forth below; and
WHEREAS, the Executive is willing to accept employment with
TLC on such terms and conditions.
NOW, THEREFORE, in consideration of the premises and mutual
agreements hereinafter contained, the parties hereto do agree as follows:
1. Employment. The Company will employ the Executive as
Chairman of the Board and Chief Executive Officer in accordance with all of the
terms and conditions set forth in this Agreement.
2. Term. The term of Executive's employment under this
Agreement shall commence effective as of the date hereof and subject to the
terms and conditions of this
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Agreement, shall continue for a period of sixty (60) consecutive months. This
Agreement shall be automatically renewed for the sixty (60) month period
following each anniversary date hereof (an "Anniversary Date") unless Executive
or the Company shall have filed an election to terminate, as hereinafter
provided, in which event Employee's employment shall terminate sixty (60) months
after the filing of such election. Such election to terminate shall be made by
either Executive or the Company by notice in writing to the other, on or before
the Anniversary Date of any year of employment, and in such case the effective
date of such election shall be deemed to be the Anniversary Date of such year of
employment.
3. Compensation.
(a) The Company shall pay to Executive, for all services rendered
by Executive under this Agreement, a base salary at the rate of $295,374.00 per
year ("Base Salary") payable in equal installments (not less frequently than
monthly) in accordance with the Company's regular payroll practices. On each
Anniversary Date, during the term hereof, the Base Salary shall be automatically
increased by a cost-of-living adjustment of an amount equal to the percentage
increase, if any, of the Consumer Price Index as published by the Bureau of
Labor Statistics.
(b) Notwithstanding the amounts set forth above, Executive may be
entitled to additional compensation, in the discretion of the Board of Directors
of the Company, for serving as a director and acting as a member and attending
meetings of the Board.
4. Duties. Executive is engaged to serve as Chief Executive Officer
and Chairman of the Board of Directors of the Company and shall perform such
duties and functions as is compatible with that position as the Company from
time-to-time may determine. During the term of this Agreement, Executive shall
devote approximately one-half of his business time to the affairs of the
Company.
5. Expenses. Executive is authorized to incur expenses for promoting
the business of the Company which are reasonable and necessary in the exercise
of his duties,
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including reasonable expenses for entertainment, travel and similar items. The
Company shall reimburse Executive promptly for all such expenses upon
presentation by Executive, from time to time, of an itemized account of
expenditures.
6. Vacation. The Executive is entitled to five (5) weeks annual
vacation. If the vacation time is not used within the annual period the
Executive will not be entitled to carry over the unused vacation time.
7. Death or Disability. In the event Executive becomes disabled, the
Employer's obligations hereunder, including Section 3, shall not be affected
thereby, and Executive's duties under Section 4 may be reduced only if, and the
event that, his disability prevents him from fully or completely satisfying any
duty thereunder. In the event of the death of the Executive, the compensation at
date of death, without further adjustment, shall be paid monthly as a death
benefit (through the end of the then-current sixty (60) month term) to his
estate, or if he so designates, his beneficiary.
8. Welfare Benefits. To the extent not received in connection with
Executive's employment with Staff Builders, Inc., a Delaware corporation,
Executive shall be entitled to continue to receive or participate in all
benefits, such as life, health, medical and disability plans, profit sharing
plans, pension plans and the like ("Welfare Plans"), which the Company may make
generally available to its senior executive employees. Executive shall be
entitled to the above-described benefits so long as Executive serves as an
employee of the Company, or as otherwise provided by the terms and conditions of
the Welfare Plans.
9. Change of Control. In the event that at any time after a Change of
Control (as defined below) but prior to the end of twelve months after such
Change of Control Executive is discharged for any reason (other than the
conviction of a felony) or leaves for any reason Executive shall receive within
thirty (30) days after such discharge a lump sum severance payment equal to 2.99
times the "average annual base salary" paid to him. For the purposes of this
Section 9 "average annual base salary shall mean the average of Executive's
annual income in the nature of compensation payable by the Company and
includible in gross income over the five most recent taxable years ending before
the Change in Control.
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A "Change of Control" shall be deemed to occur when a person,
corporation, partnership, association or entity (x) acquires a majority of the
Company's outstanding voting securities, or (y) acquires securities of the
Company bearing a majority of voting power with respect to election of directors
of the Company, or (z) acquires all or substantially all of the Company's
assets.
10. Termination. It is specifically understood and acknowledged that
the only ground upon which the Company can terminate this Agreement, except
under paragraph 2 hereof, is if Executive is found guilty of a crime resulting
in his conviction as a felon in New York State. It is expressly agreed and
understood between the parties that in the event Executive shall violate any
provision of this Agreement, the sole remedy of the Company shall be to
institute and prosecute proceedings at law in accordance with Section 12, and
not termination of Executive's employment. Executive shall be under no
obligation to minimize or mitigate damages by seeking other employment or
otherwise in the event the Company breaches or does not fulfill its obligations
under this Agreement. It is further agreed that in the event of a default by the
Company of its obligations under this Agreement or of an unsuccessful action by
the Company against Executive for his alleged violation of this Agreement,
Executive shall be entitled to recover from the Company all his expenses of
enforcing or defending any action arising out of this Agreement, including his
reasonable legal fees and expenses.
11. Noncompetition by Executive.
(a) Upon termination of Executive's employment hereunder for any
reason, Executive agrees not to compete, in the manner described hereinafter,
with the business currently conducted by the Company in the United States, for a
period of six (6) months following such termination. Executive agrees that,
during such period, he will not be employed by, work for, advise, consult with,
serve or assist in any way, directly or indirectly, any party whose activities
or .business is similar to that of the Company. The foregoing restrictions on
competition by Executive shall be operative for the benefit of the Company and
of any business owned or controlled by the Company, or any successor or assign
of any of the foregoing.
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(b) If the period of time or geographical areas specified under
this section should be determined to be unreasonable in any judicial proceeding,
then the period of time and areas of the restriction shall be reduced so that
this Agreement may be enforced in such areas and during such period of time as
shall be determined to be reasonable.
12. Arbitration. The Executive and Company hereby agree that if any
dispute arises between them, such dispute shall be determined by arbitration in
the State of New York in accordance with the rules of the American Arbitration
Association then in effect. The award rendered by such arbitration shall be
final and binding upon the parties hereto, and a judgment upon the award so
rendered may be entered in any court of competent jurisdiction.
13. Waiver. Failure to insist upon compliance with any of the terms,
covenants, or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
14. Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision. The parties to this Agreement agree and intend that this Agreement
shall be enforced as fully as it may be enforced consistent with applicable
statutes and rules of law.
15. Benefit. Except as otherwise herein expressly provided, this
Agreement shall inure to the benefit of and be binding upon the Company, its
successors and assigns, including, without limitation, any corporation which may
acquire all or substantially all of the Company's assets or business or with or
into which the Company may be consolidated or merged, and to the benefit of, and
be binding upon, Executive, his heirs, executors, administrators and legal
representatives.
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16. Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties hereto, supersedes any and all
prior discussions, agreements and correspondence with regard to the subject
matter hereof, and may not be amended, modified or supplemented in any respect,
except by a subsequent writing executed by both parties hereto.
17. Applicable Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York, without
giving effect to principles of conflicts of law.
18. Remedy for Breach. Any action to enforce, arising out of, or
relating in any way to, any of the provisions of this Agreement shall be an
action at law pursuant to the provisions of Section 12 of this Agreement.
19. Notices. All notices required hereby or given under this Agreement
shall be in writing and shall be served either personally or by certified mail,
return receipt requested, at the following addresses, or at such other address
as the parties may designate to one another in writing:
To the Company: Tender Loving Care Health Care Services, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
To Executive: Xxxxxxx Xxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
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All notices shall be deemed given when so received. All change of address
notices shall be given in the same manner as provided above.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
By:/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President and Chief
Operating Officer
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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