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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") dated as of ______, 1999 by and
between TENDER LOVING CARE HEALTH CARE SERVICES, INC., a Delaware Corporation
("TLC" or the "Corporation"), and Xxxxxxx X. Xxxx who resides at 0 Xxxxxxx
Xxxxx, Xxxx Xxxxxxxxx, XX 00000 ("Executive").
WHEREAS, TLC wishes to secure the services of the 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 their mutual promises and other
adequate consideration, TLC and the Executive do hereby agree as follows:
1. EMPLOYMENT. TLC will employ the Executive as Chief Financial
Officer, Senior Vice President and Corporate Controller, in
accordance with the terms and provisions of this Agreement.
2. DUTIES. The Executive shall report to the Chief Operating
Officer of TLC and shall be responsible to perform such duties
as shall be assigned to the Executive by the Chairman or Chief
Operating Officer of TLC or their designee. The Executive
shall devote his full business time, attention and skill such
as is required for the performance of his duties hereunder and
to the advancement of the business and interests of TLC,
subject to limited consulting duties to Staff Builders, Inc.
3. TERM. This Agreement shall be effective upon execution by TLC
and the Executive, and shall remain in effect until the third
anniversary date hereof, unless terminated earlier pursuant to
the terms hereof.
4. COMPENSATION.
(a) Salary. The Executive shall be paid a salary of $160,000 per
annum during the term hereof, payable in weekly installments.
The Executive's salary will be reviewed by TLC on March 1,
2000.
(b) Benefits. The Executive shall be eligible to receive and
participate in, in accordance with their terms, all health,
medical or other insurance benefits which TLC provides or
makes available to its employees.
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(c) Expenses. TLC shall reimburse the Executive for all reasonable
and necessary expenses upon submission by the Executive of
receipts, accounts or such other documents reasonably
requested by TLC.
(d) Car Allowance. The Executive shall have the use of a 1997
Toyota Camry VIN# 0X0XX00X0XX000000 for the balance of the
lease which expires on October 1999. Thereafter for the
balance of the term of this Agreement, Executive shall receive
a car allowance of $300 per month.
(e) Vacation. The Executive shall be entitled to four (4) weeks of
paid vacation during each twelve (12) month period of
employment during the term.
(f) Nothing in this Agreement is intended to cause a reduction in
the Executive's benefits under any TLC's policy or under any
benefit plan in which Executive is a participant at the time
of the execution of this Agreement.
5. TERMINATION; RIGHTS AND OBLIGATIONS UPON TERMINATION.
(a) If the Executive dies during the Term, then the Executive's
employment under this Agreement shall terminate. In such
event, the Executive's estate shall be entitled only to
compensation and expenses accrued and unpaid as at the date of
the Executive's death.
(b) If, as a result of the Executive's incapacity due to physical
or mental illness, whether or not job related, the Executive
is absent from his duties hereunder for 90 consecutive days,
or an aggregate of 120 days during the Term, the Executive's
employment hereunder and this Agreement shall terminate. In
such event, the Executive shall be entitled only to
compensation and expenses accrued and unpaid as at the date of
termination of the Executive's employment.
(c) The Corporation shall have the right to terminate the
Executive's employment under this Agreement for Cause. For
purposes of the Agreement, the Corporation shall have "Cause"
to terminate the Executive's employment if (i) the Executive
assigns, pledges, or otherwise disposes of his rights and
obligations under this Agreement, or attempts to do the same
without the prior written consent of the Corporation; or (ii)
the Executive has been insubordinate, has materially, breached
any of the terms or conditions hereof, has engaged in willful
misconduct or has acted in bad faith; or (iii) the Executive
has breached Section 7 of this Agreement; or (iv) the
Executive has committed a felony or perpetrated a fraud
against the Corporation. If the Corporation terminates this
Agreement for Cause, the Corporation's obligations hereunder
shall cease, except for the Corporation's obligation to pay
the Executive the compensation and expenses accrued and unpaid
as of the date of termination in accordance with the
provisions hereof.
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(d) In the event that at any time after a Change of Control (as
defined below) but prior to the end of twelve (12) months
after such Change of Control, the Executive is discharged for
any reason other than for Cause (as defined in (c) above) or
resigns for any reason (other than due to termination for
Cause), the Executive shall receive within thirty (30) days
after such discharge or resignation a lump-sum severance
payment equal to 2.99 times his average annual base salary.
For the purposes of this Section 5, "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 of Control. Anything contained
herein to the contrary notwithstanding, for a Change of
Control occurring before 2002, years considered in the base
period for calculating "average annual base salary" shall be
determined as follows:
Years Considered in
Year of Change in Control Calculating Average Base Salary
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1999 1994-1998
2000 1995-1999
2001 1996-2000
A "Change of Control" shall be deemed to occur when a person,
corporation, partnership, association or entity (i) acquires a
majority of the outstanding voting securities of TLC, Inc., a
Delaware corporation ("TLC") or (ii) acquires securities
bearing a majority of voting power with respect to election of
directors of TLC or (iii) acquires all or substantially all of
TLC's assets.
(e) Notwithstanding anything to the contrary contained herein, all
payments owed to the Executive upon termination of this
Agreement shall be subject to offset by the Corporation for
amounts owed to the corporation by the Executive hereunder.
(f) The obligations of the Corporation and the Executive pursuant
to this Section 5 shall survive the termination of this
Agreement.
6. NOTICES. Any written notice permitted or required under this
Agreement shall be deemed sufficient when hand delivered or
posted by certified or registered mail, postage prepaid, and
addressed to:
if to Tender Loving Care Health Care Services, Inc.:
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0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, COO
or
if to the Executive: Xxxxxxx X. Xxxx
0 Xxxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Either party may, in accordance with the provisions of this Section,
give written notice of a change of address, in which event all such notices and
requests shall thereafter be given as above provided at such changed address.
7. CONFIDENTIALITY OBLIGATIONS; NON-COMPETITION BY EXECUTIVE.
(a) The Executive acknowledges that in the course of performing
his duties hereunder, he will be made privy to confidential
and proprietary information. The Executive covenants and
agrees that during the term of this Agreement and at any time
after the termination of this Agreement, he will not directly
or indirectly, for his own account or as an employee, officer,
director, partner, joint venturer, shareholder, investor, or
otherwise, disclose to others or use for his own benefit or
cause or induce others to do the same, any proprietary or
confidential information or trade secrets of TLC.
(b) The Executive agrees that, while this Agreement is in effect,
and for six (6) months following termination of employment, he
will not, within the United States (A) compete, directly or
indirectly for his own account or as an employee, officer,
director, partner, joint venturer, shareholder, investor, or
otherwise, with the business conducted by TLC; or (B) while
this Agreement is in effect and for one (1) year following
termination of employment directly or indirectly solicit or
recruit any employee of TLC to leave the employ of TLC, or
solicit any client or customer of TLC to terminate or modify
its business relationship with TLC.
(c) The foregoing restrictions on the Executive set forth in this
Section 7 shall be operative for the benefit of TLC and of any
business owned or controlled by TLC, or any successor or
assign of any of the foregoing.
(d) Executive acknowledges that the restricted period of time and
geographical area specified in this Section 7 is reasonable,
in view of the nature of the business in which TLC in engaged
and the Executive's knowledge of TLC's business.
Notwithstanding anything herein to the contrary, if the period
of time or the
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geographical area specified in this Section 7 should be
determined to be unreasonable in a judicial proceeding, then
the period of time and territory of the restriction shall be
reduced so that this Agreement may be enforced in such area
and during such period of time as shall be determined to be
reasonable.
(e) The parties acknowledge that any breach of this Section 7 will
cause TLC irreparable harm for which there is no adequate
remedy at law, and as a result of this, TLC shall be entitled
to the issuance of an injunction, restraining order or other
equitable relief in favor of TLC restraining Executive from
committing or continuing any such violation. Any right to
obtain an injunction, restraining order or other equitable
relief hereunder shall not be deemed a waiver of any right to
assert any other remedy TLC may have at law or equity.
(f) For purposes of this Section 7, the term "TLC" shall refer to
the Corporation and all of its parents, subsidiaries and
affiliated corporations.
8. JURISDICTION. The Executive and TLC consent to the
jurisdiction of the New York Supreme Court for a determination
of any disputes as to any matters whatsoever arising out of or
in any way connected with this Agreement and authorize the
service of process on TLC or Executive by registered mail sent
to either party at the address set forth in Section 6 of this
Agreement.
9. HANDBOOK GROUP INSURANCE PROGRAM BOOKLET. The Executive
acknowledges receipt of the TLC Employee Handbook and Group
Insurance Program booklet (together, the "Handbook"). The
terms of the Handbook are incorporated herein by reference.
10. BINDING EFFECT. This Agreement shall bind and inure to the
benefit of TLC, its successors and assigns and shall inure to
the benefit of, and be binding upon, the Executive, his heirs,
executors and legal representatives.
11. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall in no way affect the
validity or enforceability of any other provision, or any part
thereof.
12. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New
York.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject
matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations, and discussions,
whether oral or written. of the parties.
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14. MODIFICATION, TERMINATION OR WAIVER. This Agreement may only
be amended or modified by a written instrument executed by the
parties hereto. The failure of any party at any time to
require performance of any provision of this Agreement shall
in no manner affect the right of such party at a later time to
enforce the same.
15. INDEMNIFICATION. TLC shall indemnify and hold Executive
harmless from any and all damages, costs, fees and expenses,
including but not limited to attorneys' fees, which he may
incur as a result of any claim against his arising out of his
performance of his duties under this Agreement provided that
he is not found to have committed intentional misconduct.
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IN WITNESS WHEREOF, TLC and the Executive have executed this Employment
Agreement as of the date first above written.
TENDER LOVING CARE HEALTH
CARE SERVICES, INC.
By:
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Xxxx X. Xxxxx, Chief Operating
Officer
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Xxxxxxx X. Xxxx
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