Exhibit 99(d)(5)
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
EMPLOYMENT AGREEMENT
WITH
XXXXXXX XXXXXXXX
AGREEMENT as of the 18th day of October, 2001, between Xxxxxxx
Xxxxxxxx, residing at 000 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("Executive"),
and Tender Loving Care Health Care Services, Inc. ("Company"), 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;
WHEREAS, Executive is party to an employment agreement with the Company
dated October 20, 1999 ("TLCS Agreement");
WHEREAS, x-Xxxxxxx.xxx ("Med") and Company have entered into an
Agreement and Plan of Merger and Reorganization dated as of October 18, 2001
("Merger Agreement") whereby, among other things, Med will acquire all of the
outstanding shares of TLCS (collectively, the "Acquisition");
WHEREAS, the Acquisition triggers certain rights of Executive under the
TLCS Agreement; and
WHEREAS, the Executive is willing to accept employment with the Company
on such terms and conditions set forth in this Agreement.
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 Chief Executive
Officer of the Company 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 on which the Minimum Condition (as such term
is defined in the Merger Agreement) has been satisfied (the "Effective Date")
and subject to the terms and conditions of this 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 of the
Effective 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 AND BONUS PAYMENTS.
(a) The Company shall pay to Executive, for all services rendered
by Executive under this Agreement, a base salary at the rate of $600,000 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 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) In addition to Section 3(a) above, Executive will be entitled
to receive a signing bonus in the amount of $4,770,000, less applicable
withholding taxes, on the Effective Date ("Signing Bonus"); provided, however,
if the Executive shall voluntarily terminate employment with the Company (other
than for Good Reason pursuant to Section 9(c)(ii) below) or if the Executive is
terminated for Cause (as defined in Section 9(a) below) during the first twelve
(12) months of the Agreement, the Executive shall immediately pay the Company an
amount equal to $4,770,000 (less applicable withholding taxes that are
refundable or creditable to the Company, if any) multiplied by a fraction, the
numerator of which shall be twelve (12) less the total number of full months
that have elapsed from the Effective Date and the date of termination and the
denominator of which shall be twelve (12).
(c) Notwithstanding Section 3(b) above, a Change of Control of the
Company or Med shall not cause the Signing Bonus to be fully vested. "Change of
Control" shall be deemed to occur when a person, corporation, partnership,
association or entity (x) acquires a majority of the Company's or Med's
outstanding voting securities, or (y) acquires securities of the Company or Med
bearing a majority of voting power with respect to election of directors of the
Company or Med, or (z) acquires all or substantially all of the Company's or
Med's assets.
(d) In addition to his Base Salary and Signing Bonus, (a) for a
twelve-month period from the date of this Agreement ("Initial Period"),
Executive shall be entitled to participate in the current existing executive
bonus plan of the Company as adopted by the Board of Directors of the Company;
and (b) after the Initial Period, Executive shall be entitled to participate in
any executive bonus plan maintained by Med.
(e) As addition consideration for Executive entering into this
Agreement and agreeing to perform his obligations hereunder, Med is issuing to
Executive a Warrant to purchase 6,000,000 shares of common stock of Med, on the
terms and conditions set forth therein.
4. DUTIES. Executive is engaged to serve as Chief Executive Officer 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. Executive shall
report to the Chief Executive Officer of Med. During the term of this Agreement,
Executive shall devote all of his business time to the affairs of the Company,
except that Executive may serve as Chairman of the Board of Directors of ATC
Healthcare, Inc. In addition, during the initial term of this Agreement,
Executive shall serve as a
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Director on the Board of Directors of Med. In the event this Agreement is
terminated voluntarily by Executive for any reason (other than Good Reason) or
is terminated by the Company for Cause, or in the event Executive is no longer
employed by the Company and Executive owns less than 1,000,000 shares of common
stock or common stock equivalents pursuant to warrants, Executive shall, if
requested by the Company, resign as director of Med and any of its subsidiaries.
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, 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. The Company shall pay monthly lease payments for one
automobile (of the make and model currently used by Executive in connection with
the Company's business) and shall pay liability and collision insurance, gas and
maintenance with respect to Executive's use thereof, in each case on a basis
consistent with past practice by the Company with respect to Executive.
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
Company'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 or termination of
this Agreement upon Executive's disability pursuant to Section 9(d) below, the
Company shall pay Executive, his estate or his designated beneficiary, as the
case may be, the amounts specified in Section 9(d) below.
8. WELFARE BENEFITS. 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. TERMINATION.
(a) FOR CAUSE. Notwithstanding anything herein to the contrary,
the Company may terminate this Agreement for Cause (as hereinafter defined). The
Company shall furnish a written notice (a "Notice of Cause") to Executive
indicating that the Company intends to terminate this Agreement for Cause, with
such notice to specify in reasonable detail the event(s) or circumstance(s) that
the Company believes constitute Cause for purposes of this Agreement. The date
on which Executive receives such written notice shall be the "Notice Date."
Within 15 days following the Notice Date, Executive shall have the right to
provide the Company a written notice (a "Notice of Dispute") describing any
dispute or disagreement Executive has with the Company regarding the alleged
event(s) or circumstance(s) specified by
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the Company in its Notice of Cause such that, in Executive's view, Cause does
not then exist for purposes of this Agreement. If Executive does not deliver a
Notice of Dispute to the Company within such 15-day period, Executive's
employment shall be deemed terminated for Cause as of the Notice Date. If
Executive delivers a Notice of Dispute to the Company during such 15-day period,
the dispute shall be determined by arbitration in accordance with Section 13
below. During the pendency of any such dispute, Executive's employment shall
continue hereunder and the Company shall continue to pay to Executive the Base
Salary, bonus payments and benefits to which Executive is entitled hereunder. In
the event the arbitrator finally determines that "Cause" did exist as specified
in the Notice of Cause, Executive's employment shall be deemed terminated for
Cause as of the Notice Date. If the Executive's employment is terminated for
Cause, the Company shall pay the Executive only the accrued and unpaid portions
of the Base Salary and any Performance Bonus and other bonus payments and
benefits which have accrued through the date of termination and, to the extent
Executive actually received any Base Salary or bonus payments allocable to any
period from and after the Notice Date, Executive shall pay to the Company the
amount of any such Base Salary or bonus payments, if any, promptly following the
determination in accordance with this Section 9(a) that Executive's employment
has been terminated for Cause. Termination for "Cause" shall include termination
of Executive because of the Executive's personal dishonesty in the performance
of any of his material duties hereunder, willful misconduct in the performance
of any of his material duties hereunder, breach of fiduciary duty to the Company
involving personal profit, intentional failure to perform stated duties
hereunder, willful violation of any law, rule or regulation constituting a
felony or final cease-and-desist order (in each case as determined by the Board
of Directors of the Company, subject to arbitration under Section 13 hereof,
provided that in the event of any such arbitration, the Company shall be the
claimant with the burden of proving the existence of Cause). In the event
Executive is terminated for Cause, Executive shall have no further rights under
this Agreement.
(b) WITHOUT CAUSE. If the Company terminates the Executive's
employment hereunder without Cause, the Company will make the following payments
to the Executive: (i) the Company shall continue to pay the then-prevailing Base
Salary through the end of the then current 60-month term of this Agreement as if
the Executive had continued to be employed by the Company; (ii) any unpaid bonus
payments, whether or not earned, which shall be paid to Executive in one lump
sum on the termination date; (iii) such benefits as have accrued and are unpaid
as of the termination date under any Welfare Plan in which the Executive is a
participant; and (iv) to the extent applicable, the cost of COBRA-based health
insurance for a period of 12 months after the termination date, payable monthly.
(c) RESIGNATION. (i) WITHOUT GOOD REASON. If the Executive resigns
his employment other than for Good Reason (as hereinafter defined), the
Executive shall be deemed to have been terminated for Cause and the Company
shall have all of the obligations to the Executive described in subsection (a)
above.
(ii) WITH GOOD REASON. Notwithstanding the foregoing, if the
Executive resigns for Good Reason, the Executive shall be deemed to have been
terminated without Cause and the Company shall have all of the obligations to
the Employee described in subsection (b) above. For purposes of this Agreement,
"Good Reason" means (i) an assignment by the Company to Executive of duties
which are inconsistent with Executive's title and position
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with the Company; (ii) any breach of this Agreement by the Company that has not
been cured within thirty (30) days after written notice to the Chief Executive
of Med by Executive of such breach; (iii) any requirement that Executive
relocate his principal place of business outside of Lake Success, New York, or
(iv) any attempt by the Company to terminate Executive's employment for Cause
where Cause is not proven. Notwithstanding anything to the contrary herein, Good
Reason shall not mean an election by the Company to terminate this Agreement
pursuant to Section 2 hereof.
(d) DEATH OR DISABILITY. This Agreement shall terminate
automatically upon Executive's death. Company may terminate Executive's
employment hereunder upon Executive's inability to substantially perform his
duties hereunder by reason of illness or incapacity for an aggregate of ninety
(90) consecutive days or total of one hundred eighty (180) days in any twelve
(12) month period. Upon termination of this Agreement for death or disability,
Executive or his estate or designated beneficiary shall be entitled to (i) his
Base Salary through the end of the then current 60-month term; (ii) any unpaid
bonus payments, whether or not earned, which shall be paid to Executive in one
lump sum on the termination date; and (iii) such benefits as have accrued and
are unpaid as of the termination date under any Welfare Plan in which the
Executive is a participant;
10. FAILURE TO PERFORM OBLIGATIONS. 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, without a violation of this Agreement by the Executive, 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. CONFIDENTIALITY. Executive shall hold in a fiduciary capacity for
the benefit of the Company all secret or confidential information, knowledge or
data relating to the Company, and its business, which shall have been obtained
by Executive during Executive's employment by the Company or at any time prior
thereto and which shall not be or become public knowledge (other than by acts by
Executive or representatives of Executive in violation of this Agreement). After
termination of Executive's employment with the Company, Executive shall not,
without the prior written consent of the Company or as may otherwise be required
by law or legal process, communicate or divulge any such information, knowledge
or data to anyone other than the Company and those designated by it.
12. 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
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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.
(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.
13. 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. For any such
arbitration, the Company shall pay the costs of the arbitrator in connection
therewith and the prevailing party in such dispute shall be reimbursed by the
other party for all of the prevailing party's legal fees and expenses and other
out-of-pocket costs incurred in connection with the dispute.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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 13 of this Agreement.
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20. 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: 0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
With a copy to: X-XXXXXXX.XXX
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
To Executive: Xxxxxxx Xxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
All notices shall be deemed given when so received. All change of address
notices shall be given in the same manner as provided above.
21. WAIVER OF RIGHTS UNDER PRIOR AGREEMENTS. By executing this
Agreement but conditioned on this Agreement become effective on the Effective
Date as provided in Section 2 above, the Executive fully releases, acquits and
forever discharges the Company, and all of its former or current respective
subsidiaries of and from any and all claims, actions, causes of action, charges,
judgments, grievances, obligations, rights, demands, debts, sums of money,
wages, overtime, commissions, bonuses, stock payments, dividends, damages,
attorney's fees, costs, losses, liabilities or accountings of whatever nature,
whether known or unknown, disclosed or undisclosed, asserted or unasserted, in
law or equity, contract or tort or otherwise, arising out of the TLCS Agreement,
including, but not limited to, any rights to severance payments.
22. COUNTERPARTS. This Agreement may be executed in one or more
original or facsimile counterparts.
[signature page follows]
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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
-----------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
EXECUTIVE
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
WITNESS
/s/ Xxxxxxx X. Xxxx
---------------------------------------------
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