EXHIBIT 99.(c)(4)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of this 23rd day of February, 1998, by and between
Kapson Senior Quarters Corp., a Delaware corporation (the "Company") and Xxxxx
Xxxxxx (the "Employee").
WHEREAS, the Employee has been and is presently employed by the
Company; and
WHEREAS, the Employee possesses an intimate knowledge of the business
and affairs of the Company and its policies, procedures, methods and personnel;
and
WHEREAS, pursuant to the Amended and Restated Agreement and Plan of
Merger dated as of the date hereof by and among Prometheus Senior Quarters LLC
("Investor"), Prometheus Acquisition Corp. ("PAC") and the Company (the "Merger
Agreement") PAC will be merged into the Company as of the Effective Time (as
defined in the Merger Agreement); and
WHEREAS, Employee was employed pursuant to an employment agreement with
the Company dated as of September 25, 1996 (the "Former Employment Agreement")
and this Agreement as in effect prior to the date hereof superseded the Former
Employment Agreement; and
WHEREAS, the Employee is a partner of the G.W.E. Partnership which
partnership is a party to various operating agreements (the "Operating
Agreements") pursuant to which the Employee, as the holder of one or more
operating certificates has agreed to operate certain facilities of the Company;
WHEREAS, the Company desires to amend and restate this Agreement to
ensure the continued services and employment of the Employee on behalf of the
Company and the Employee is willing to render such continued services on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Employment Term. Subject to the terms and provisions of this
Agreement, the Company hereby agrees to employ the Employee and Employee hereby
agrees to be employed by the Company for the period commencing on the date on
which the Effective Time occurs (the "Effective Date") and ending on the second
anniversary of the date hereof, unless renewed or terminated sooner as
hereinafter provided (the "Employment Term"). The Employment Term shall be
automatically renewed for successive one-year terms unless either party gives
written notice to the other at least six (6) months prior to the expiration of
the then Employment Term of such party's intention that the Employment Term
shall not be so extended. The term of this Agreement shall be coincident with
the Employment Term.
2. Duties. During the Employment Term the Employee shall serve as Chief
Executive Officer of the Company or such other position as may be agreed upon by
Company and Employee and shall perform such duties, services and
responsibilities incident to such position(s) as determined from time to time by
the Board of Directors of the Company (the "Board"). The Employee also agrees to
perform such other duties, services and responsibilities which are consistent
with his position as may from time to time be reasonably requested by the Board.
The Employee shall devote his full business time, attention and skill
to the performance of such duties, services and responsibilities, and will use
his best efforts to promote the interests of the Company. The Employee will not,
without the prior written approval of the Board, engage in any other business
activity which would interfere with the performance of his duties, services and
responsibilities hereunder or which is in violation of policies established from
time to time by the Company. Notwithstanding the foregoing, the Employee shall
be entitled to: (a) serve on corporate, civic or charitable
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boards or committees, (b) deliver lectures, fulfill speaking engagements or
teach at educational institutions, and (c) manage personal investments (but in
no event may the Employee own more than 5% of the shares of any publicly traded
company or entity), so long as such activities do not materially interfere with
the performance of Employee's duties or responsibilities pursuant to this
Agreement.
3. Compensation. (a) Salary. In consideration of the performance
by the Employee of the Employee's obligations during the Employment Term
(including any services as an officer, director, employee, member of any
committee of the Company, or otherwise), the Company will during the Employment
Term pay the Employee a salary (the "Salary") at an annual rate of not less than
$250,000. The Employee's salary shall be reviewed annually by the Company and
shall be increased as of the first day of each fiscal year beginning on or after
January 1, 1999 by no less than the increase in the Consumer Price Index - Urban
Wage Earners (or, in the event such index is no longer published, such other
index as is determined in good faith by the Board to be comparable) from the
penultimate month prior to the beginning of the fiscal year being completed to
the penultimate month of the fiscal year being completed (as so increased,
"Salary"). The Salary will be reduced by any amounts paid to the Employee under
any of the Operating Agreements, the manner in which such reductions are to be
effected shall be determined by the Board taking into account the expected
timing of payments pursuant to the Operating Agreements.
(b) Bonus. (i) In further consideration of the performance by the
Employee of the Employee's obligations during the Employment Term (including any
services as an officer, director, employee, member of any committee of the
Company, or otherwise), the Company will pay the Employee an annual bonus (the
"Bonus") in respect of each fiscal year beginning on or after January 1, 1998 of
up to 75% of the Employee's Salary (the "Target Bonus"). Any bonus payable in
respect of the fiscal
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year beginning January 1, 1998, shall be payable, with interest at an annual
rate equal to four percent (4%), within five (5) days following the end of the
fiscal year 1999; provided, however, that no bonus shall be payable for such
fiscal year in the event the Employee's employment with the Company shall have
been terminated by the Company for Cause (as defined below) or voluntarily by
the Employee without Good Reason (as defined below) on or prior to December 31,
1999. The actual amount paid will be determined in accordance with the following
provisions of this Section 3(b).
(ii) If the Company's actual performance for an applicable
fiscal year is at least 90% or more of the budgeted performance (as set forth in
clause (iii) below), the Employee shall be entitled to receive 100% of the
Target Bonus. If the Company's actual performance for an applicable fiscal year
is 85% or more but less than 90% of the budgeted performance, the Employee shall
be entitled to receive 50% of the Target Bonus. If the Company's actual
performance for an applicable fiscal year is less than 85% of the budgeted
performance, the Employee shall not be entitled to any portion of the Target
Bonus. Notwithstanding the foregoing, if for any fiscal year the Employee is
entitled to less than 100% of the Target Bonus, the Board, in its sole
discretion, may award the Employee with a bonus equal to all or any portion of
the amount by which the amount, if any, to which he is entitled pursuant to this
Section 3(b)(ii) is less than the Target Bonus. If the Company's actual
performance for an applicable fiscal year is greater than 95% of the budgeted
performance, the Board may in its sole discretion determine to increase the
Employee's Bonus to an amount greater than 100% of the Target Bonus.
(iii) For purposes of this Section 3(b), the budget for each
of the fiscal years beginning January 1, 1998 and 1999 is set forth on Appendix
A hereto. The budget for any future fiscal year shall be established by the
Board in a manner
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consistent with past practice. It is understood that the budget is prepared on a
property by property basis but that the Company's actual performance versus
budgeted performance is to be measured on an overall basis. If during any fiscal
year new properties are acquired or development is commenced with respect to any
new properties not contemplated by the budget, appropriate adjustments to the
budget as established pursuant to this Section 3(b)(iii) will be made by the
Board.
(iv) The Employee's Salary and any bonus shall be payable in
accordance with the normal payroll practices of the Company then in effect and
subject to all applicable taxes required to be withheld by the Company pursuant
to federal, state or local law. The Employee shall be solely responsible for
taxes imposed on the Employee by reason of any compensation and benefits
provided hereunder.
4. Disability. If the Employee is unable to substantially
perform his duties, services and responsibilities hereunder by reason of a
physical or mental infirmity for a total of 180 calendar days in any
twelve-month period during the Employment Term ("Disability"), the Company shall
not be obligated to pay the Employee any Salary or Bonus for any period of
absence in excess of such 180 calendar days.
5. Benefits. (a) In addition to the payment of the Salary and
Bonus described above, the Employee shall be entitled to participate in any
employee benefit plans then in effect for similarly situated employees and
receive any other fringe benefits that the Company then provides to similarly
situated employees to the extent the Employee meets the eligibility requirements
for any such plan or benefit. In no event shall the employee benefits provided
to the Employee be, in the aggregate, less favorable to the Employee than the
employee benefits provided to the Employee by the
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Company as of the date hereof. Stock options shall not be taken into account for
purposes of the foregoing sentence.
(b) The Company shall, during the Employment Term, provide
Employee with a leased automobile at a level and under arrangements commensurate
with the automobile provided under the Former Employment Agreement immediately
prior to the Effective Date.
(c) The Company shall, during the Employment Term, provide
long term disability coverage for the Employee providing for a benefit of at
least sixty-five (65%) of the Employee's Salary based on his own occupation or
comparable occupation level and with a waiting period of not longer than six (6)
months ("Long Term Disability Coverage"), provided such level of Long Term
Disability Coverage is obtainable on commercially reasonable terms.
(d) The Company shall, during the Employment Term, pay any
dues or other fees for the Employee's membership in the country club of which he
is a member as of the Effective Date, or such other club as is approved by the
Board. The Employee shall be responsible for any income tax due as a result of
his personal use of such country club. The Company, to the extent permitted by
law, shall not treat the Employee's business use of such country club as
compensation to him.
6. Vacations. During the Employment Term the Employee shall be entitled
to the number of paid vacation days in each calendar year determined by the
Company from time to time, but not less than four (4) weeks in any calendar
year.
7. Expenses. The Company shall reimburse the Employee in accordance
with its expense reimbursement policy as in effect from time to time for all
reasonable expenses incurred by the Employee in connection with the performance
of
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his duties under this Agreement upon the presentation by the Employee of an
itemized account of such expenses and appropriate receipts.
8. Termination. The Employee's employment with the Company and the
Employment Term shall terminate upon the expiration of the Employment Term or
upon the earlier occurrence of any of the following events:
(a) The death of the Employee ("Death").
(b) The mutual agreement between the Company and the Employee
on an early termination date.
(c) The termination of employment by the Company for Cause.
"Cause" shall mean (a) the Employee being convicted of (or pleading nolo
contendere to) a felony (other than a traffic violation); (b) the repeated
refusal of the Employee to attempt to properly perform his obligations under
this Agreement, or follow any direction of the Board consistent with this
Agreement, which in either case is not remedied within ten (10) business days
after receipt by the Employee of written notice from the Company specifying the
details thereof, provided the refusal to follow a direction shall not be Cause
if the Employee in good faith believes that such direction is not legal, ethical
or moral or not within the scope of his duties pursuant to this Agreement and
promptly notifies the Board in writing of such belief; and provided further
that, upon his request, the Employee shall be entitled to a hearing before the
Board within seven (7) business days following his receipt of written notice
from the Company; (c) the Employee's gross negligence with regard to his duties
or willful misconduct with regard to the business, assets or employees of the
Company which in either event has a material adverse effect on the Company and
its subsidiaries in the aggregate; (d) any other breach by the Employee of a
material provision of this Agreement that remains uncured for twenty (20)
business days after written notice thereof is given to the Employee or such
longer period as may reasonably
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be required to remedy the default, provided that the Employee endeavors in good
faith to remedy the default; or (e) any act of fraud or misappropriation of
funds involving the Company.
(d) The termination of employment by the Company for
Disability.
(e) The termination of employment by the Company other than
for Cause, Disability or Death.
(f) The termination of the Employee's employment upon the date
specified in the written resignation of the Employee for Good Reason stating
with specificity the details of the Good Reason, if the stated Good Reason is
not cured within twenty (20) days of the giving of such notice. Notice of Good
Reason shall be given within one hundred eighty (180) days of occurrence of the
Good Reason event. "Good Reason" shall mean (a) any reduction in title or a
material reduction in authority, duties or responsibilities (except temporarily
during any period of physical or mental illness); (b) failure to elect the
Employee to the Board of Directors; (c) relocation of the Company's principal
place of business more than thirty (30) miles from the Company's current
principal place of business located at Woodbury, New York; (d) the Employee
being required to report to other than the Board or (e) any other material
breach of any provision of this Agreement by the Company.
In the event of termination of this Agreement, for whatever
reason, the Employee agrees to cooperate with the Company and to be reasonably
available to the Company with respect to continuing and/or future matters
arising out of the Employee's employment or any other relationship with the
Company, whether such matters are business-related, legal or otherwise. The
Company shall not require the Employee to make himself available to the Company
pursuant to this paragraph in any manner that will materially interfere with his
then existing employment relationship. The provisions of this paragraph shall
survive termination of this Agreement.
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9. Termination Payments. (a) If the Employee's employment with the
Company terminates for whatever reason, the Company will pay the Employee any
portion of the Salary accrued hereunder on or prior to the date of termination
but not paid to the Employee as of such date.
(b) If the Employee's termination is pursuant to Section 8(e)
or Section 8(f), the Company shall continue to pay the Employee an amount equal
to his Salary (at the rate in effect at the time of his termination of
employment) during the period commencing on the effective date of the Employee's
termination of employment and ending on the second anniversary of the Effective
Date (or the expiration of the then current Employment Term if the Agreement has
been extended pursuant to Section 1). In addition, the Company shall continue
the Employee's then current medical coverage for a period of two (2) years
following termination of the Employee's employment.
(c) If the Employee's termination is pursuant to Section 8(a),
the Company shall pay the Employee's Beneficiary (as defined below) an amount
equal to his Salary (at the rate in effect at the time of the Employee's
termination of employment) for a period of six months following the date of the
Employee's Death. For purposes of this provision, the Employee's Beneficiary
shall be the Employee's spouse; if the Employee is not married on his date of
Death, the Employee's children, per stirpes; and otherwise, the Employee's
estate.
(d) If the Employee's termination is pursuant to Section 8(d),
the Company shall continue to pay the Employee an amount equal to his Salary (at
the rate in effect at the time of his termination of employment) for a period of
six months following the effective date of the Employee's termination of
employment.
The foregoing payments upon termination shall constitute the exclusive
payments due to or in respect of the Employee upon the termination of his
employment under this Agreement, but shall have no effect on any benefits which
may be due the
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Employee under any plan of the Company which provides benefits after termination
of employment, other than severance pay or salary continuation which shall be
reduced by the amount of any payment received by the Employee following his
termination pursuant to this Agreement. In the event any payments are required
to be made to the Employee pursuant to this Section 9, the Employee shall be
under no obligation to seek other employment and, in such case, there shall be
no offset against any amounts due to the Employee under this Agreement on
account of any remuneration attributable to any subsequent employment that the
Employee may obtain.
10. Transfer of License. (a) The Employee agrees and understands that
the operating certificates (the "Certificates") issued to and held by him
individually and in his capacity as a partner of G.W.E. Partnership are
essential to the operation of the business of the Company. Accordingly, the
Employee agrees that (i) he shall continue as an Operator under each Operating
Agreement for so long as he is employed by the Company and (ii) if, immediately
following his termination of employment with the Company for any reason, the
Company would have no other officer or agent who is a holder of a valid
operating certificate in respect of each of the Company's facilities, he shall
continue to act in his capacity as an operator under any Operating Agreements
with facilities that the Company or an affiliate operates or manages until the
earlier of the fifth anniversary of the Effective Date or the date on which a
Replacement Operator (as such term is defined in that certain letter agreement
dated October 1, 1997) shall have been installed and shall have been approved by
all appropriate regulatory authorities to operate the Company's facilities. In
the event of a termination that triggers the provisions of the foregoing
sentence, the Company shall use its best efforts to ensure that one of its
officers or agents secures a valid operating certificate in respect of each of
the Company's facilities as soon as reasonably possible following such
termination.
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(b) The Employee agrees that any breach of the terms of this
Section 10 would result in irreparable injury and damage to the Company for
which the Company would have no adequate remedy at law; the Employee therefore
also agrees that in the event of said breach or any threat of breach, the
Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the
Employee, without having to prove damages, and to all costs and expenses,
including reasonable attorney's fees and costs, in addition to any other
remedies to which the Company may be entitled at law or in equity. The Employee
also agrees that in the event of a breach of this Section 10 he shall not be
entitled to any payments that he might otherwise be entitled to under Section 9.
The terms of this paragraph shall not prevent the Company from pursuing any
other available remedies for any breach or threatened breach hereof, including
but not limited to the recovery of damages from the Employee and those remedies
set forth in the Escrow Agreement, dated as of the date hereof, by and among
Prometheus Senior Quarters LLC, Prometheus Acquisition Corp. and Xxxxx Xxxxxx,
Xxxxx X. Xxxxxx and Xxxx X. Xxxxxx d/b/a G.W.E. Partnership and Xxxxxx Trust and
Savings Bank.
11. Employee Covenants.
(a) Unauthorized Disclosure. The Employee agrees and understands
that in the Employee's position with the Company, the Employee has been and will
be exposed to and receive information relating to the confidential affairs of
the Company, including but not limited to technical information, business and
marketing plans, strategies, customer information, other information concerning
the Company's products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information considered by
the Company to be confidential and/or in the nature of trade secrets. The
Employee agrees that during the Employment Term and thereafter, the Employee
will keep such information confidential and not
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disclose such information, either directly or indirectly, to any third person or
entity without the prior written consent of the Company. This confidentiality
covenant has no temporal, geographical or territorial restriction. Upon
termination of this Agreement, the Employee will promptly supply to the Company
all material property, keys, notes, memoranda, writings, lists, files, reports,
customer lists, correspondence, tapes, disks, cards, surveys, maps, logs,
machines, technical data or any other tangible product or document which has
been produced by, received by or otherwise submitted to the Employee during or
prior to the Employment Term. Any material breach of the terms of this paragraph
shall be considered Cause.
(b) Non-competition. By and in consideration of the Company's
entering into this Agreement and the Salary, Bonus and benefits to be provided
by the Company hereunder, and further in consideration of the Employee's
exposure to the proprietary information of the Company, the Employee agrees that
the Employee will not, during the Employment Term and for a period of three (3)
years thereafter (or five (5) years thereafter if he is terminated by the
Company for Cause), directly or indirectly own, manage, operate, join, control,
be employed by, or participate in the ownership, management, operation or
control of, or be connected in any manner, including but not limited to holding,
the positions of shareholder, director, officer, consultant, independent
contractor, employee, partner, or investor, with any Competing Enterprise. For
purposes of this paragraph, the term "Competing Enterprise" shall mean any
person, corporation, partnership or other entity engaged in any Competitive
Business within a twenty-five (25) mile radius of any such business operated, or
in the pipeline to be operated (to the extent the Employee has knowledge after
due inquiry of such proposal), by the Company, Lazard Freres Real Estate
Investors LLC ("LFREI") or any affiliate of LFREI. For purposes of this
paragraph, the term "Competitive Business" shall mean assisted living,
independent living, skilled nursing facilities and continuing care retirement
centers
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(containing assisted living, independent living and skilled nursing facilities
in one campus). During the five years following termination of this Agreement,
upon request, the Employee shall notify the Company of the Employee's then
current employment status.
(c) Non-solicitation. During the Employment Term and for a period
of two years thereafter, the Employee shall not interfere with the Company's
relationship with, or endeavor to entice away from the Company, any person who
at any time during the Employment Term was an employee (other than the
Employee's secretary or Xxxxxxx XxxXxxxxx ("Xx. XxxXxxxxx") but, with respect to
Xx. XxxXxxxxx, only if (i) Xx. XxxXxxxxx'x employment with the Company shall
have been terminated by the Company giving notice to Xx. XxxXxxxxx of its
intention not to extend his Employment Term past the second anniversary of the
Effective Date (each, as defined in the Employment Agreement, dated as of the
date hereof, between the Company and Xx. XxxXxxxxx); and (ii) Xx. XxxXxxxxx
shall not be employed in any Competitive Business)) or customer of the Company
or otherwise had a material business relationship with the Company.
(d) Remedies. The Employee agrees that any breach of the terms of
this Section 11 would result in irreparable injury and damage to the Company for
which the Company would have no adequate remedy at law; the Employee therefore
also agrees that in the event of said breach or any threat of breach, the
Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the
Employee and/or any and all persons and/or entities acting for and/or with the
Employee, without having to prove damages, and to all costs and expenses,
including reasonable attorneys' fees and costs, in addition to any other
remedies to which the Company may be entitled at law or in equity. The terms of
this paragraph shall not prevent the Company from pursuing any other available
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remedies for any breach or threatened breach hereof, including but not limited
to the recovery of damages from the Employee. The Employee and the Company
further agree that the provisions of the covenant not to compete are reasonable.
Should a court or arbitrator determine, however, that any provision of the
covenant not to compete is unreasonable, either in period of time, geographical
area, or otherwise, the parties hereto agree that the covenant should be
interpreted and enforced to the maximum extent which such court or arbitrator
deems reasonable.
The provisions of this Section 11 shall survive any termination of this
Agreement and the Employment Term and the existence of any claim or cause of
action by the Employee against the Company, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Company
of the covenants and agreements of this Section 11.
12. Proprietary Rights. The Employee represents and warrants that all
patents, patent applications, rights to inventions, copyright registrations and
other license, trademark and trade name rights heretofore owned by the Employee
and relating to the business of the Company or any of its subsidiaries have been
duly transferred to such corporation.
13. Non-Waiver of Rights. The failure to enforce at any time the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement or
any part hereof, or the right of either party to enforce each and every
provision in accordance with its terms.
14. Notices. Every notice relating to this Agreement shall be in
writing and shall be given by personal delivery or by overnight courier or
registered or certified mail, postage prepaid, return receipt requested, as
follows:
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(i) If to the Company
Kapson Senior Quarters Corp.
000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxxx, Xxx Xxxx 00000
(i) If to the Employee
Xxxxx Xxxxxx
c/o Kapson Senior Quarters Corp.
000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxxx, Xxx Xxxx 00000
Notices shall be considered effective when received.
15. Binding Effect/Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
executors, personal representatives, estates, successors (including, without
limitation, by way of merger) and assigns. Notwithstanding the provisions or the
immediately preceding sentence, the Employee shall not assign all or any portion
of this Agreement without the prior written consent of the Company.
16. Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, between them as to such
subject matter including without limitation the Former Employment Agreement
which shall be null and void as of the date hereof, and the Employee agrees that
he is not entitled to any further benefits thereunder, including, without
limitation, benefits that would or may otherwise have been payable thereunder
upon or following the Merger. This Agreement may not be amended, nor may any
provision hereof be modified or waived, except by an instrument in writing duly
signed by the party to be charged.
17. Severability. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part, such
provision or application
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shall to that extent be severable and shall not affect other provisions or
applications of this Agreement.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without reference to
the principles of conflict of laws.
19. Modifications and Waivers. No provision of this Agreement may be
modified, altered or amended except by an instrument in writing executed by the
parties hereto. No waiver by either party hereto of any breach by the other
party hereto of any provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions at the time
or at any prior or subsequent time.
20. Headings. The headings contained herein are solely for the purposes
of reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
22. Excise Tax Limitation
(a) Notwithstanding anything contained in this Agreement to the
contrary, to the Fextent that any payment or distribution of any type to or for
the benefit of the Employee by the Company, any affiliate of the Company, any
person who acquires ownership or effective control of the Company or ownership
of a substantial portion of the Company's assets (within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder), or any affiliate of such person, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Total Payments") is or will be subject to the excise tax
imposed under Section 4999 of the Code (the "Excise Tax"), then the Total
Payments
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shall be reduced (but not below zero) if and to the extent that a reduction in
the Total Payments would result in the Employee retaining a larger amount, on an
after-tax basis (taking into account federal, state and local income taxes and
the Excise Tax), than if the Employee received the entire amount of such Total
Payments. Unless the Employee shall have given prior written notice specifying a
different order to the Company to effectuate the foregoing, the Company shall
reduce or eliminate the Total Payments, by first reducing or eliminating the
portion of the Total Payments which are not payable in cash and then by reducing
or eliminating cash payments, in each case in reverse order beginning with
payments or benefits which are to be paid the farthest in time from the
Determination (as hereinafter defined). Any notice given by the Employee
pursuant to the preceding sentence shall take precedence over the provisions of
any other plan, arrangement or agreement governing the Employee's rights and
entitlements to any benefits or compensation.
(b) The determination of whether the Total Payments shall be
reduced as provided in Section 22(a) and the amount of such reduction shall be
made at the Company's expense by an accounting firm selected by the Company from
among the six largest accounting firms in the United States (the "Accounting
Firm"). The Accounting Firm shall provide its determination (the
"Determination"), together with detailed supporting calculations and
documentation to the Company and the Employee within ten (10) days of the
Termination Date. If the Accounting Firm determines that no Excise Tax is
payable by the Employee with respect to the Total Payments, it shall furnish the
Employee with an opinion reasonably acceptable to the Employee that no Excise
Tax will be imposed with respect to any such payments and, absent manifest
error, such Determination shall be binding, final and conclusive upon the
Company and the Employee. If the Accounting Firm determines that an Excise Tax
would be payable, the Employee shall have the right to accept the Determination
of the Accounting Firm as to
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the extent of the reduction, if any, pursuant to Section 22(a), or to have such
Determination reviewed by an accounting firm selected by the Employee from among
the six largest accounting firms in the United States, at the expense of the
Employee, in which case the determination of such second accounting firm shall
be binding, final and conclusive upon the Company and the Employee.
23. Indemnification. During the Employment Term and thereafter, the
Company shall indemnify the Employee to the fullest extent permitted by law
against any judgments, fines, amounts paid in settlement and reasonable expenses
(including attorneys' fees), and advance amounts necessary to pay the foregoing
at the earliest time and to the fullest extent permitted by law, in connection
with any claim, action or proceeding (whether civil or criminal) against the
Employee as a result of the Employee serving as an officer or director of the
Company or in any capacity at the request of the Company, in or with regard to
any other entity, employee benefit plan or enterprise (other than arising out of
the employee's acts of willful misconduct, misappropriation of funds or fraud).
This indemnification shall be in addition to, and not in lieu of, any other
indemnification the Employee shall be entitled to pursuant to the Company's
Certificate of Incorporation or By-laws or otherwise. Following the Employee's
termination of employment, the Company shall continue to cover the Employee
under the Company's directors and officers insurance for the period during which
the Employee may be subject to potential liability for any claim, action or
proceeding (whether civil or criminal) as a result of his service as an officer
or director of the Company or in any capacity at the request of the Company, at
the highest level then maintained for any then or former officer or director.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by authority of its Board of Directors, and the Employee has hereunto
set his hand, the day and year first above written.
Kapson Senior Quarters Corp.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Executive Vice President
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
-19-
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of this 23rd day of February, 1998, by and between
Kapson Senior Quarters Corp., a Delaware corporation (the "Company") and Xxxxx
X. Xxxxxx (the "Employee").
WHEREAS, the Employee has been and is presently employed by the
Company; and
WHEREAS, the Employee possesses an intimate knowledge of the business
and affairs of the Company and its policies, procedures, methods and personnel;
and
WHEREAS, pursuant to the Amended and Restated Agreement and Plan of
Merger dated as of the date hereof by and among Prometheus Senior Quarters LLC
("Investor"), Prometheus Acquisition Corp. ("PAC") and the Company (the "Merger
Agreement") PAC will be merged into the Company as of the Effective Time (as
defined in the Merger Agreement); and
WHEREAS, Employee was employed pursuant to an employment agreement with
the Company dated as of September 25, 1996 (the "Former Employment Agreement")
and this Agreement as in effect prior to the date hereof superseded the Former
Employment Agreement; and
WHEREAS, the Employee is a partner of the G.W.E. Partnership which
partnership is a party to various operating agreements (the "Operating
Agreements") pursuant to which the Employee, as the holder of one or more
operating certificates has agreed to operate certain facilities of the Company;
WHEREAS, the Company desires to amend and restate this Agreement to
ensure the continued services and employment of the Employee on behalf of the
Company and the Employee is willing to render such continued services on the
terms and conditions set forth herein.
-20-
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Employment Term. Subject to the terms and provisions of this
Agreement, the Company hereby agrees to employ the Employee and Employee hereby
agrees to be employed by the Company for the period commencing on the date on
which the Effective Time occurs (the "Effective Date") and ending on the second
anniversary of the date hereof, unless renewed or terminated sooner as
hereinafter provided (the "Employment Term"). The Employment Term shall be
automatically renewed for successive one-year terms unless either party gives
written notice to the other at least six (6) months prior to the expiration of
the then Employment Term of such party's intention that the Employment Term
shall not be so extended. The term of this Agreement shall be coincident with
the Employment Term.
2. Duties. During the Employment Term the Employee shall serve as
Senior Executive Vice President, Secretary or General Counsel of the Company or
such other position as may be agreed upon by Company and Employee and shall
perform such duties, services and responsibilities incident to such position(s)
as determined from time to time by the Board of Directors of the Company (the
"Board"). The Employee also agrees to perform such other duties, services and
responsibilities which are consistent with his position as may from time to time
be reasonably requested by the Board.
The Employee shall devote his full business time, attention and skill
to the performance of such duties, services and responsibilities, and will use
his best efforts to promote the interests of the Company. The Employee will not,
without the prior written approval of the Board, engage in any other business
activity which would interfere with the performance of his duties, services and
responsibilities hereunder or which is in violation of policies established from
time to time by the Company. Notwithstanding the foregoing, the Employee shall
be entitled to: (a) serve on corporate, civic or charitable
-21-
boards or committees, (b) deliver lectures, fulfill speaking engagements or
teach at educational institutions, and (c) manage personal investments (but in
no event may the Employee own more than 5% of the shares of any publicly traded
company or entity), so long as such activities do not materially interfere with
the performance of Employee's duties or responsibilities pursuant to this
Agreement.
3. Compensation. (a) Salary. In consideration of the performance by the
Employee of the Employee's obligations during the Employment Term (including any
services as an officer, director, employee, member of any committee of the
Company, or otherwise), the Company will during the Employment Term pay the
Employee a salary (the "Salary") at an annual rate of not less than $200,000.
The Employee's salary shall be reviewed annually by the Company and shall be
increased as of the first day of each fiscal year beginning on or after January
1, 1999 by no less than the increase in the Consumer Price Index - Urban Wage
Earners (or, in the event such index is no longer published, such other index as
is determined in good faith by the Board to be comparable) from the penultimate
month prior to the beginning of the fiscal year being completed to the
penultimate month of the fiscal year being completed (as so increased,
"Salary"). The Salary will be reduced by any amounts paid to the Employee under
any of the Operating Agreements, the manner in which such reductions are to be
effected shall be determined by the Board taking into account the expected
timing of payments pursuant to the Operating Agreements.
(b) Bonus. (i) In further consideration of the performance by the
Employee of the Employee's obligations during the Employment Term (including any
services as an officer, director, employee, member of any committee of the
Company, or otherwise), the Company will pay the Employee an annual bonus (the
"Bonus") in respect of each fiscal year beginning on or after January 1, 1998 of
up to 75% of the Employee's Salary (the "Target Bonus"). Any bonus payable in
respect of the fiscal
-22-
year beginning January 1, 1998, shall be payable, with interest at an annual
rate equal to four percent (4%), within five (5) days following the end of the
fiscal year 1999; provided, however, that no bonus shall be payable for such
fiscal year in the event the Employee's employment with the Company shall have
been terminated by the Company for Cause (as defined below) or voluntarily by
the Employee without Good Reason (as defined below) on or prior to December 31,
1999. The actual amount paid will be determined in accordance with the following
provisions of this Section 3(b).
(ii) If the Company's actual performance for an applicable
fiscal year is at least 90% or more of the budgeted performance (as set forth in
clause (iii) below), the Employee shall be entitled to receive 100% of the
Target Bonus. If the Company's actual performance for an applicable fiscal year
is 85% or more but less than 90% of the budgeted performance, the Employee shall
be entitled to receive 50% of the Target Bonus. If the Company's actual
performance for an applicable fiscal year is less than 85% of the budgeted
performance, the Employee shall not be entitled to any portion of the Target
Bonus. Notwithstanding the foregoing, if for any fiscal year the Employee is
entitled to less than 100% of the Target Bonus, the Board, in its sole
discretion, may award the Employee with a bonus equal to all or any portion of
the amount by which the amount, if any, to which he is entitled pursuant to this
Section 3(b)(ii) is less than the Target Bonus. If the Company's actual
performance for an applicable fiscal year is greater than 95% of the budgeted
performance, the Board may in its sole discretion determine to increase the
Employee's Bonus to an amount greater than 100% of the Target Bonus.
(iii) For purposes of this Section 3(b), the budget for each
of the fiscal years beginning January 1, 1998 and 1999 is set forth on Appendix
A hereto. The budget for any future fiscal year shall be established by the
Board in a manner
-23-
consistent with past practice. It is understood that the budget is prepared on a
property by property basis but that the Company's actual performance versus
budgeted performance is to be measured on an overall basis. If during any fiscal
year new properties are acquired or development is commenced with respect to any
new properties not contemplated by the budget, appropriate adjustments to the
budget as established pursuant to this Section 3(b)(iii) will be made by the
Board.
(iv) The Employee's Salary and any bonus shall be payable in
accordance with the normal payroll practices of the Company then in effect and
subject to all applicable taxes required to be withheld by the Company pursuant
to federal, state or local law. The Employee shall be solely responsible for
taxes imposed on the Employee by reason of any compensation and benefits
provided hereunder.
4. Disability. If the Employee is unable to substantially perform his
duties, services and responsibilities hereunder by reason of a physical or
mental infirmity for a total of 180 calendar days in any twelve-month period
during the Employment Term ("Disability"), the Company shall not be obligated to
pay the Employee any Salary or Bonus for any period of absence in excess of such
180 calendar days.
5. Benefits. (a) In addition to the payment of the Salary and Bonus
described above, the Employee shall be entitled to participate in any employee
benefit plans then in effect for similarly situated employees and receive any
other fringe benefits that the Company then provides to similarly situated
employees to the extent the Employee meets the eligibility requirements for any
such plan or benefit. In no event shall the employee benefits provided to the
Employee be, in the aggregate, less favorable to the Employee than the employee
benefits provided to the Employee by the
-24-
Company as of the date hereof. Stock options shall not be taken into account for
purposes of the foregoing sentence.
(b) The Company shall, during the Employment Term, provide
Employee with a leased automobile at a level and under arrangements commensurate
with the automobile provided under the Former Employment Agreement immediately
prior to the Effective Date.
(c) The Company shall, during the Employment Term, provide
long term disability coverage for the Employee providing for a benefit of at
least sixty-five (65%) of the Employee's Salary based on his own occupation or
comparable occupation level and with a waiting period of not longer than six (6)
months ("Long Term Disability Coverage"), provided such level of Long Term
Disability Coverage is obtainable on commercially reasonable terms.
(d) The Company shall, during the Employment Term, pay any
dues or other fees for the Employee's membership in the country club of which he
is a member as of the Effective Date, or such other club as is approved by the
Board. The Employee shall be responsible for any income tax due as a result of
his personal use of such country club. The Company, to the extent permitted by
law, shall not treat the Employee's business use of such country club as
compensation to him.
6. Vacations. During the Employment Term the Employee shall be entitled
to the number of paid vacation days in each calendar year determined by the
Company from time to time, but not less than four (4) weeks in any calendar
year.
7. Expenses. The Company shall reimburse the Employee in accordance
with its expense reimbursement policy as in effect from time to time for all
reasonable expenses incurred by the Employee in connection with the performance
of
-25-
his duties under this Agreement upon the presentation by the Employee of an
itemized account of such expenses and appropriate receipts.
8. Termination. The Employee's employment with the Company and the
Employment Term shall terminate upon the expiration of the Employment Term or
upon the earlier occurrence of any of the following events:
(a) The death of the Employee ("Death").
(b) The mutual agreement between the Company and the Employee
on an early termination date.
(c) The termination of employment by the Company for Cause.
"Cause" shall mean (a) the Employee being convicted of (or pleading nolo
contendere to) a felony (other than a traffic violation); (b) the repeated
refusal of the Employee to attempt to properly perform his obligations under
this Agreement, or follow any direction of the Board consistent with this
Agreement, which in either case is not remedied within ten (10) business days
after receipt by the Employee of written notice from the Company specifying the
details thereof, provided the refusal to follow a direction shall not be Cause
if the Employee in good faith believes that such direction is not legal, ethical
or moral or not within the scope of his duties pursuant to this Agreement and
promptly notifies the Board in writing of such belief; and provided further
that, upon his request, the Employee shall be entitled to a hearing before the
Board within seven (7) business days following his receipt of written notice
from the Company; (c) the Employee's gross negligence with regard to his duties
or willful misconduct with regard to the business, assets or employees of the
Company which in either event has a material adverse effect on the Company and
its subsidiaries in the aggregate; (d) any other breach by the Employee of a
material provision of this Agreement that remains uncured for twenty (20)
business days after written notice thereof is given to the Employee or such
longer period as may reasonably
-26-
be required to remedy the default, provided that the Employee endeavors in good
faith to remedy the default; or (e) any act of fraud or misappropriation of
funds involving the Company.
(d) The termination of employment by the Company for
Disability.
(e) The termination of employment by the Company other than
for Cause, Disability or Death.
(f) The termination of the Employee's employment upon the date
specified in the written resignation of the Employee for Good Reason stating
with specificity the details of the Good Reason, if the stated Good Reason is
not cured within twenty (20) days of the giving of such notice. Notice of Good
Reason shall be given within one hundred eighty (180) days of occurrence of the
Good Reason event. "Good Reason" shall mean (a) any reduction in title or a
material reduction in authority, duties or responsibilities (except temporarily
during any period of physical or mental illness); (b) relocation of the
Company's principal place of business more than thirty (30) miles from the
Company's current principal place of business located at Woodbury, New York; or
(c) any other material breach of any provision of this Agreement by the Company.
In the event of termination of this Agreement, for whatever reason, the
Employee agrees to cooperate with the Company and to be reasonably available to
the Company with respect to continuing and/or future matters arising out of the
Employee's employment or any other relationship with the Company, whether such
matters are business-related, legal or otherwise. The Company shall not require
the Employee to make himself available to the Company pursuant to this paragraph
in any manner that will materially interfere with his then existing employment
relationship. The provisions of this paragraph shall survive termination of this
Agreement.
9. Termination Payments. (a) If the Employee's employment with the
Company terminates for whatever reason, the Company will pay the Employee any
-27-
portion of the Salary accrued hereunder on or prior to the date of termination
but not paid to the Employee as of such date.
(b) If the Employee's termination is pursuant to Section 8(e)
or Section 8(f), the Company shall continue to pay the Employee an amount equal
to his Salary (at the rate in effect at the time of his termination of
employment) during the period commencing on the effective date of the Employee's
termination of employment and ending on the second anniversary of the Effective
Date (or the expiration of the then current Employment Term if the Agreement has
been extended pursuant to Section 1). In addition, the Company shall continue
the Employee's then current medical coverage for a period of two (2) years
following termination of the Employee's employment.
(c) If the Employee's termination is pursuant to Section 8(a),
the Company shall pay the Employee's Beneficiary (as defined below) an amount
equal to his Salary (at the rate in effect at the time of the Employee's
termination of employment) for a period of six months following the date of the
Employee's Death. For purposes of this provision, the Employee's Beneficiary
shall be the Employee's spouse; if the Employee is not married on his date of
Death, the Employee's children, per stirpes; and otherwise, the Employee's
estate.
(d) If the Employee's termination is pursuant to Section 8(d),
the Company shall continue to pay the Employee an amount equal to his Salary (at
the rate in effect at the time of his termination of employment) for a period of
six months following the effective date of the Employee's termination of
employment.
The foregoing payments upon termination shall constitute the exclusive
payments due to or in respect of the Employee upon the termination of his
employment under this Agreement, but shall have no effect on any benefits which
may be due the Employee under any plan of the Company which provides benefits
after termination of employment, other than severance pay or salary continuation
which shall be reduced by
-28-
the amount of any payment received by the Employee following his termination
pursuant to this Agreement. In the event any payments are required to be made to
the Employee pursuant to this Section 9, the Employee shall be under no
obligation to seek other employment and, in such case, there shall be no offset
against any amounts due to the Employee under this Agreement on account of any
remuneration attributable to any subsequent employment that the Employee may
obtain.
10. Employee Covenants.
(a) Unauthorized Disclosure. The Employee agrees and understands
that in the Employee's position with the Company, the Employee has been and will
be exposed to and receive information relating to the confidential affairs of
the Company, including but not limited to technical information, business and
marketing plans, strategies, customer information, other information concerning
the Company's products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information considered by
the Company to be confidential and/or in the nature of trade secrets. The
Employee agrees that during the Employment Term and thereafter, the Employee
will keep such information confidential and not disclose such information,
either directly or indirectly, to any third person or entity without the prior
written consent of the Company. This confidentiality covenant has no temporal,
geographical or territorial restriction. Upon termination of this Agreement, the
Employee will promptly supply to the Company all material property, keys, notes,
memoranda, writings, lists, files, reports, customer lists, correspondence,
tapes, disks, cards, surveys, maps, logs, machines, technical data or any other
tangible product or document which has been produced by, received by or
otherwise submitted to the Employee during or prior to the Employment Term. Any
material breach of the terms of this paragraph shall be considered Cause.
-29-
(b) Non-competition. By and in consideration of the Company's
entering into this Agreement and the Salary, Bonus and benefits to be provided
by the Company hereunder, and further in consideration of the Employee's
exposure to the proprietary information of the Company, the Employee agrees that
the Employee will not, during the Employment Term and for a period of three (3)
years thereafter (or five (5) years thereafter if he is terminated by the
Company for Cause), directly or indirectly own, manage, operate, join, control,
be employed by, or participate in the ownership, management, operation or
control of, or be connected in any manner, including but not limited to holding,
the positions of shareholder, director, officer, consultant, independent
contractor, employee, partner, or investor, with any Competing Enterprise. For
purposes of this paragraph, the term "Competing Enterprise" shall mean any
person, corporation, partnership or other entity engaged in any Competitive
Business within a twenty-five (25) mile radius of any such business operated, or
in the pipeline to be operated (to the extent the Employee has knowledge after
due inquiry of such proposal), by the Company, Lazard Freres Real Estate
Investors LLC ("LFREI") or any affiliate of LFREI. For purposes of this
paragraph, the term "Competitive Business" shall mean assisted living,
independent living, skilled nursing facilities and continuing care retirement
centers (containing assisted living, independent living and skilled nursing
facilities in one campus). During the five years following termination of this
Agreement, upon request, the Employee shall notify the Company of the Employee's
then current employment status.
(c) Non-solicitation. During the Employment Term and for a period of
two years thereafter, the Employee shall not interfere with the Company's
relationship with, or endeavor to entice away from the Company, any person who
at any time during the Employment Term was an employee (other than the
Employee's secretary or Xxxxxxx XxxXxxxxx ("Xx. XxxXxxxxx") but, with respect to
Xx. XxxXxxxxx, only if (i)
-30-
Xx. XxxXxxxxx'x employment with the Company shall have been terminated by the
Company giving notice to Xx. XxxXxxxxx of its intention not to extend his
Employment Term past the second anniversary of the Effective Date (each, as
defined in the Employment Agreement, dated as of the date hereof, between the
Company and Xx. XxxXxxxxx); and (ii) Xx. XxxXxxxxx shall not be employed in any
Competitive Business)) or customer of the Company or otherwise had a material
business relationship with the Company.
(d) Remedies. The Employee agrees that any breach of the terms of
this Section 10 would result in irreparable injury and damage to the Company for
which the Company would have no adequate remedy at law; the Employee therefore
also agrees that in the event of said breach or any threat of breach, the
Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the
Employee and/or any and all persons and/or entities acting for and/or with the
Employee, without having to prove damages, and to all costs and expenses,
including reasonable attorneys' fees and costs, in addition to any other
remedies to which the Company may be entitled at law or in equity. The terms of
this paragraph shall not prevent the Company from pursuing any other available
remedies for any breach or threatened breach hereof, including but not limited
to the recovery of damages from the Employee. The Employee and the Company
further agree that the provisions of the covenant not to compete are reasonable.
Should a court or arbitrator determine, however, that any provision of the
covenant not to compete is unreasonable, either in period of time, geographical
area, or otherwise, the parties hereto agree that the covenant should be
interpreted and enforced to the maximum extent which such court or arbitrator
deems reasonable.
The provisions of this Section 10 shall survive any termination of this
Agreement and the Employment Term and the existence of any claim or cause of
action
-31-
by the Employee against the Company, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Company
of the covenants and agreements of this Section 10.
11. Proprietary Rights. The Employee represents and warrants that all
patents, patent applications, rights to inventions, copyright registrations and
other license, trademark and trade name rights heretofore owned by the Employee
and relating to the business of the Company or any of its subsidiaries have been
duly transferred to such corporation.
12. Non-Waiver of Rights. The failure to enforce at any time the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement or
any part hereof, or the right of either party to enforce each and every
provision in accordance with its terms.
13. Notices. Every notice relating to this Agreement shall be in
writing and shall be given by personal delivery or by overnight courier or
registered or certified mail, postage prepaid, return receipt requested, as
follows:
(i) If to the Company
Kapson Senior Quarters Corp.
000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxxx, Xxx Xxxx 00000
(i) If to the Employee
Xxxxx X. Xxxxxx
c/o Kapson Senior Quarters Corp.
000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxxx, Xxx Xxxx 00000
Notices shall be considered effective when received.
14. Binding Effect/Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
executors, personal
-32-
representatives, estates, successors (including, without limitation, by way of
merger) and assigns. Notwithstanding the provisions or the immediately preceding
sentence, the Employee shall not assign all or any portion of this Agreement
without the prior written consent of the Company.
15. Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, between them as to such
subject matter including without limitation the Former Employment Agreement
which shall be null and void as of the date hereof, and the Employee agrees that
he is not entitled to any further benefits thereunder, including, without
limitation, benefits that would or may otherwise have been payable thereunder
upon or following the Merger. This Agreement may not be amended, nor may any
provision hereof be modified or waived, except by an instrument in writing duly
signed by the party to be charged.
16. Severability. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part, such
provision or application shall to that extent be severable and shall not affect
other provisions or applications of this Agreement.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without reference to
the principles of conflict of laws.
18. Modifications and Waivers. No provision of this Agreement may be
modified, altered or amended except by an instrument in writing executed by the
parties hereto. No waiver by either party hereto of any breach by the other
party hereto of any provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions at the time
or at any prior or subsequent time.
-33-
19. Headings. The headings contained herein are solely for the purposes
of reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
21. Excise Tax Limitation
(a) Notwithstanding anything contained in this Agreement to the
contrary, to the extent that any payment or distribution of any type to or for
the benefit of the Employee by the Company, any affiliate of the Company, any
person who acquires ownership or effective control of the Company or ownership
of a substantial portion of the Company's assets (within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder), or any affiliate of such person, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Total Payments") is or will be subject to the excise tax
imposed under Section 4999 of the Code (the "Excise Tax"), then the Total
Payments shall be reduced (but not below zero) if and to the extent that a
reduction in the Total Payments would result in the Employee retaining a larger
amount, on an after-tax basis (taking into account federal, state and local
income taxes and the Excise Tax), than if the Employee received the entire
amount of such Total Payments. Unless the Employee shall have given prior
written notice specifying a different order to the Company to effectuate the
foregoing, the Company shall reduce or eliminate the Total Payments, by first
reducing or eliminating the portion of the Total Payments which are not payable
in cash and then by reducing or eliminating cash payments, in each case in
reverse order beginning with payments or benefits which are to be paid the
farthest in time from the Determination (as hereinafter defined). Any notice
given by the Employee pursuant to
-34-
the preceding sentence shall take precedence over the provisions of any other
plan, arrangement or agreement governing the Employee's rights and entitlements
to any benefits or compensation.
(b) The determination of whether the Total Payments shall be
reduced as provided in Section 21(a) and the amount of such reduction shall be
made at the Company's expense by an accounting firm selected by the Company from
among the six largest accounting firms in the United States (the "Accounting
Firm"). The Accounting Firm shall provide its determination (the
"Determination"), together with detailed supporting calculations and
documentation to the Company and the Employee within ten (10) days of the
Termination Date. If the Accounting Firm determines that no Excise Tax is
payable by the Employee with respect to the Total Payments, it shall furnish the
Employee with an opinion reasonably acceptable to the Employee that no Excise
Tax will be imposed with respect to any such payments and, absent manifest
error, such Determination shall be binding, final and conclusive upon the
Company and the Employee. If the Accounting Firm determines that an Excise Tax
would be payable, the Employee shall have the right to accept the Determination
of the Accounting Firm as to the extent of the reduction, if any, pursuant to
Section 21(a), or to have such Determination reviewed by an accounting firm
selected by the Employee from among the six largest accounting firms in the
United States, at the expense of the Employee, in which case the determination
of such second accounting firm shall be binding, final and conclusive upon the
Company and the Employee.
22. Indemnification. During the Employment Term and thereafter, the
Company shall indemnify the Employee to the fullest extent permitted by law
against any judgments, fines, amounts paid in settlement and reasonable expenses
(including attorneys' fees), and advance amounts necessary to pay the foregoing
at the earliest time and to the fullest extent permitted by law, in connection
with any claim, action or
-35-
proceeding (whether civil or criminal) against the Employee as a result of the
Employee serving as an officer or director of the Company or in any capacity at
the request of the Company, in or with regard to any other entity, employee
benefit plan or enterprise (other than arising out of the employee's acts of
willful misconduct, misappropriation of funds or fraud) . This indemnification
shall be in addition to, and not in lieu of, any other indemnification the
Employee shall be entitled to pursuant to the Company's Certificate of
Incorporation or By-laws or otherwise. Following the Employee's termination of
employment, the Company shall continue to cover the Employee under the Company's
directors and officers insurance for the period during which the Employee may be
subject to potential liability for any claim, action or proceeding (whether
civil or criminal) as a result of his service as an officer or director of the
Company or in any capacity at the request of the Company, at the highest level
then maintained for any then or former officer or director.
-36-
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by authority of its Board of Directors, and the Employee has hereunto
set his hand, the day and year first above written.
Kapson Senior Quarters Corp.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
-37-
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of this 23rd day of February, 1998, by and
between Kapson Senior Quarters Corp., a Delaware corporation (the "Company") and
Xxxx X. Xxxxxx (the "Employee").
WHEREAS, the Employee has been and is presently employed by the
Company; and
WHEREAS, the Employee possesses an intimate knowledge of the business
and affairs of the Company and its policies, procedures, methods and personnel;
and
WHEREAS, pursuant to the Amended and Restated Agreement and Plan of
Merger dated as of the date hereof by and among Prometheus Senior Quarters LLC
("Investor"), Prometheus Acquisition Corp. ("PAC") and the Company (the "Merger
Agreement") PAC will be merged into the Company as of the Effective Time (as
defined in the Merger Agreement); and
WHEREAS, Employee was employed pursuant to an employment agreement with
the Company dated as of September 25, 1996 (the "Former Employment Agreement")
and this Agreement as in effect prior to the date hereof superseded the Former
Employment Agreement; and
WHEREAS, the Employee is a partner of the G.W.E. Partnership which
partnership is a party to various operating agreements (the "Operating
Agreements") pursuant to which the Employee, as the holder of one or more
operating certificates has agreed to operate certain facilities of the Company;
WHEREAS, the Company desires to amend and restate this Agreement to
ensure the continued services and employment of the Employee on behalf of the
Company and the Employee is willing to render such continued services on the
terms and conditions set forth herein.
-38-
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Employment Term. Subject to the terms and provisions of this
Agreement, the Company hereby agrees to employ the Employee and Employee hereby
agrees to be employed by the Company for the period commencing on the date on
which the Effective Time occurs (the "Effective Date") and ending on the second
anniversary of the date hereof, unless renewed or terminated sooner as
hereinafter provided (the "Employment Term"). The Employment Term shall be
automatically renewed for successive one-year terms unless either party gives
written notice to the other at least six (6) months prior to the expiration of
the then Employment Term of such party's intention that the Employment Term
shall not be so extended. The term of this Agreement shall be coincident with
the Employment Term.
2. Duties. During the Employment Term the Employee shall serve as Chief
Operating Officer of the Company or such other position as may be agreed upon by
Company and Employee and shall perform such duties, services and
responsibilities incident to such position(s) as determined from time to time by
the Board of Directors of the Company (the "Board"). The Employee also agrees to
perform such other duties, services and responsibilities which are consistent
with his position as may from time to time be reasonably requested by the Board.
The Employee shall devote his full business time, attention and skill
to the performance of such duties, services and responsibilities, and will use
his best efforts to promote the interests of the Company. The Employee will not,
without the prior written approval of the Board, engage in any other business
activity which would interfere with the performance of his duties, services and
responsibilities hereunder or which is in violation of policies established from
time to time by the Company. Notwithstanding the foregoing, the Employee shall
be entitled to: (a) serve on corporate, civic or charitable
-39-
boards or committees, (b) deliver lectures, fulfill speaking engagements or
teach at educational institutions, and (c) manage personal investments (but in
no event may the Employee own more than 5% of the shares of any publicly traded
company or entity), so long as such activities do not materially interfere with
the performance of Employee's duties or responsibilities pursuant to this
Agreement.
3. Compensation. (a) Salary. In consideration of the performance by the
Employee of the Employee's obligations during the Employment Term (including any
services as an officer, director, employee, member of any committee of the
Company, or otherwise), the Company will during the Employment Term pay the
Employee a salary (the "Salary") at an annual rate of not less than $225,000.
The Employee's salary shall be reviewed annually by the Company and shall be
increased as of the first day of each fiscal year beginning on or after January
1, 1999 by no less than the increase in the Consumer Price Index - Urban Wage
Earners (or, in the event such index is no longer published, such other index as
is determined in good faith by the Board to be comparable) from the penultimate
month prior to the beginning of the fiscal year being completed to the
penultimate month of the fiscal year being completed (as so increased,
"Salary"). The Salary will be reduced by any amounts paid to the Employee under
any of the Operating Agreements, the manner in which such reductions are to be
effected shall be determined by the Board taking into account the expected
timing of payments pursuant to the Operating Agreements.
(b) Bonus. (i) In further consideration of the performance by the
Employee of the Employee's obligations during the Employment Term (including any
services as an officer, director, employee, member of any committee of the
Company, or otherwise), the Company will pay the Employee an annual bonus (the
"Bonus") in respect of each fiscal year beginning on or after January 1, 1998 of
up to 100% of the Employee's Salary (the "Target Bonus"). Any bonus payable in
respect of the fiscal
-40-
year beginning January 1, 1998, shall be payable, with interest at an annual
rate equal to four percent (4%), within five (5) days following the end of the
fiscal year 1999; provided, however, that no bonus shall be payable for such
fiscal year in the event the Employee's employment with the Company shall have
been terminated by the Company for Cause (as defined below) or voluntarily by
the Employee without Good Reason (as defined below) on or prior to December 31,
1999. The actual amount paid will be determined in accordance with the following
provisions of this Section 3(b).
(ii) If the Company's actual performance for an applicable
fiscal year is at least 90% or more of the budgeted performance (as set forth in
clause (iii) below), the Employee shall be entitled to receive 100% of the
Target Bonus. If the Company's actual performance for an applicable fiscal year
is 85% or more but less than 90% of the budgeted performance, the Employee shall
be entitled to receive 50% of the Target Bonus. If the Company's actual
performance for an applicable fiscal year is less than 85% of the budgeted
performance, the Employee shall not be entitled to any portion of the Target
Bonus. Notwithstanding the foregoing, if for any fiscal year the Employee is
entitled to less than 100% of the Target Bonus, the Board, in its sole
discretion, may award the Employee with a bonus equal to all or any portion of
the amount by which the amount, if any, to which he is entitled pursuant to this
Section 3(b)(ii) is less than the Target Bonus. If the Company's actual
performance for an applicable fiscal year is greater than 95% of the budgeted
performance, the Board may in its sole discretion determine to increase the
Employee's Bonus to an amount greater than 100% of the Target Bonus.
(iii) For purposes of this Section 3(b), the
budget for each of the fiscal years beginning January 1, 1998 and 1999 is set
forth on Appendix A hereto. The budget for any future fiscal year shall be
established by the Board in a manner
-41-
consistent with past practice. It is understood that the budget is prepared on a
property by property basis but that the Company's actual performance versus
budgeted performance is to be measured on an overall basis. If during any fiscal
year new properties are acquired or development is commenced with respect to any
new properties not contemplated by the budget, appropriate adjustments to the
budget as established pursuant to this Section 3(b)(iii) will be made by the
Board.
(iv) The Employee's Salary and any bonus shall be payable in
accordance with the normal payroll practices of the Company then in effect and
subject to all applicable taxes required to be withheld by the Company pursuant
to federal, state or local law. The Employee shall be solely responsible for
taxes imposed on the Employee by reason of any compensation and benefits
provided hereunder.
4. Disability. If the Employee is unable to substantially perform his
duties, services and responsibilities hereunder by reason of a physical or
mental infirmity for a total of 180 calendar days in any twelve-month period
during the Employment Term ("Disability"), the Company shall not be obligated to
pay the Employee any Salary or Bonus for any period of absence in excess of such
180 calendar days.
5. Benefits. (a) In addition to the payment of the Salary and Bonus
described above, the Employee shall be entitled to participate in any employee
benefit plans then in effect for similarly situated employees and receive any
other fringe benefits that the Company then provides to similarly situated
employees to the extent the Employee meets the eligibility requirements for any
such plan or benefit. In no event shall the employee benefits provided to the
Employee be, in the aggregate, less favorable to the Employee than the employee
benefits provided to the Employee by the
-42-
Company as of the date hereof. Stock options shall not be taken into account for
purposes of the foregoing sentence.
(b) The Company shall, during the Employment Term, provide Employee
with a leased automobile at a level and under arrangements commensurate with the
automobile provided under the Former Employment Agreement immediately prior to
the Effective Date.
(c) The Company shall, during the Employment Term, provide long
term disability coverage for the Employee providing for a benefit of at least
sixty-five (65%) of the Employee's Salary based on his own occupation or
comparable occupation level and with a waiting period of not longer than six (6)
months ("Long Term Disability Coverage"), provided such level of Long Term
Disability Coverage is obtainable on commercially reasonable terms.
(d) The Company shall, during the Employment Term, pay any dues or
other fees for the Employee's membership in the country club of which he is a
member as of the Effective Date, or such other club as is approved by the Board.
The Employee shall be responsible for any income tax due as a result of his
personal use of such country club. The Company, to the extent permitted by law,
shall not treat the Employee's business use of such country club as compensation
to him.
6. Vacations. During the Employment Term the Employee shall be entitled
to the number of paid vacation days in each calendar year determined by the
Company from time to time, but not less than four (4) weeks in any calendar
year.
7. Expenses. The Company shall reimburse the Employee in accordance
with its expense reimbursement policy as in effect from time to time for all
reasonable expenses incurred by the Employee in connection with the performance
of
-43-
his duties under this Agreement upon the presentation by the Employee of an
itemized account of such expenses and appropriate receipts.
8. Termination. The Employee's employment with the Company and the
Employment Term shall terminate upon the expiration of the Employment Term or
upon the earlier occurrence of any of the following events:
(a) The death of the Employee ("Death").
(b) The mutual agreement between the Company and the Employee on an
early termination date.
(c) The termination of employment by the Company for Cause. "Cause"
shall mean (a) the Employee being convicted of (or pleading nolo contendere to)
a felony (other than a traffic violation); (b) the repeated refusal of the
Employee to attempt to properly perform his obligations under this Agreement, or
follow any direction of the Board consistent with this Agreement, which in
either case is not remedied within ten (10) business days after receipt by the
Employee of written notice from the Company specifying the details thereof,
provided the refusal to follow a direction shall not be Cause if the Employee in
good faith believes that such direction is not legal, ethical or moral or not
within the scope of his duties pursuant to this Agreement and promptly notifies
the Board in writing of such belief; and provided further that, upon his
request, the Employee shall be entitled to a hearing before the Board within
seven (7) business days following his receipt of written notice from the
Company; (c) the Employee's gross negligence with regard to his duties or
willful misconduct with regard to the business, assets or employees of the
Company which in either event has a material adverse effect on the Company and
its subsidiaries in the aggregate; (d) any other breach by the Employee of a
material provision of this Agreement that remains uncured for twenty (20)
business days after written notice thereof is given to the Employee or such
longer period as may reasonably
-44-
be required to remedy the default, provided that the Employee endeavors in good
faith to remedy the default; or (e) any act of fraud or misappropriation of
funds involving the Company.
(d) The termination of employment by the Company for Disability.
(e) The termination of employment by the Company other than for
Cause, Disability or Death.
(f) The termination of the Employee's employment upon the date
specified in the written resignation of the Employee for Good Reason stating
with specificity the details of the Good Reason, if the stated Good Reason is
not cured within twenty (20) days of the giving of such notice. Notice of Good
Reason shall be given within one hundred eighty (180) days of occurrence of the
Good Reason event. "Good Reason" shall mean (a) any reduction in title or a
material reduction in authority, duties or responsibilities (except temporarily
during any period of physical or mental illness); (b) failure to elect the
Employee to the Board of Directors; (c) relocation of the Company's principal
place of business more than thirty (30) miles from the Company's current
principal place of business located at Woodbury, New York; or (d) any other
material breach of any provision of this Agreement by the Company.
In the event of termination of this Agreement, for whatever reason, the
Employee agrees to cooperate with the Company and to be reasonably available to
the Company with respect to continuing and/or future matters arising out of the
Employee's employment or any other relationship with the Company, whether such
matters are business-related, legal or otherwise. The Company shall not require
the Employee to make himself available to the Company pursuant to this paragraph
in any manner that will materially interfere with his then existing employment
relationship. The provisions of this paragraph shall survive termination of this
Agreement.
-45-
9. Termination Payments. (a) If the Employee's employment with the
Company terminates for whatever reason, the Company will pay the Employee any
portion of the Salary accrued hereunder on or prior to the date of termination
but not paid to the Employee as of such date.
(b) If the Employee's termination is pursuant to Section 8(e) or
Section 8(f), the Company shall continue to pay the Employee an amount equal to
his Salary (at the rate in effect at the time of his termination of employment)
during the period commencing on the effective date of the Employee's termination
of employment and ending on the second anniversary of the Effective Date (or the
expiration of the then current Employment Term if the Agreement has been
extended pursuant to Section 1). In addition, the Company shall continue the
Employee's then current medical coverage for a period of two (2) years following
termination of the Employee's employment.
(c) If the Employee's termination is pursuant to Section 8(a), the
Company shall pay the Employee's Beneficiary (as defined below) an amount equal
to his Salary (at the rate in effect at the time of the Employee's termination
of employment) for a period of six months following the date of the Employee's
Death. For purposes of this provision, the Employee's Beneficiary shall be the
Employee's spouse; if the Employee is not married on his date of Death, the
Employee's children, per stirpes; and otherwise, the Employee's estate.
(d) If the Employee's termination is pursuant to Section 8(d), the
Company shall continue to pay the Employee an amount equal to his Salary (at the
rate in effect at the time of his termination of employment) for a period of six
months following the effective date of the Employee's termination of employment.
The foregoing payments upon termination shall constitute the exclusive
payments due to or in respect of the Employee upon the termination of his
employment under this Agreement, but shall have no effect on any benefits which
may be due the
-46-
Employee under any plan of the Company which provides benefits after termination
of employment, other than severance pay or salary continuation which shall be
reduced by the amount of any payment received by the Employee following his
termination pursuant to this Agreement. In the event any payments are required
to be made to the Employee pursuant to this Section 9, the Employee shall be
under no obligation to seek other employment and, in such case, there shall be
no offset against any amounts due to the Employee under this Agreement on
account of any remuneration attributable to any subsequent employment that the
Employee may obtain.
10. Employee Covenants.
(a) Unauthorized Disclosure. The Employee agrees and understands
that in the Employee's position with the Company, the Employee has been and will
be exposed to and receive information relating to the confidential affairs of
the Company, including but not limited to technical information, business and
marketing plans, strategies, customer information, other information concerning
the Company's products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information considered by
the Company to be confidential and/or in the nature of trade secrets. The
Employee agrees that during the Employment Term and thereafter, the Employee
will keep such information confidential and not disclose such information,
either directly or indirectly, to any third person or entity without the prior
written consent of the Company. This confidentiality covenant has no temporal,
geographical or territorial restriction. Upon termination of this Agreement, the
Employee will promptly supply to the Company all material property, keys, notes,
memoranda, writings, lists, files, reports, customer lists, correspondence,
tapes, disks, cards, surveys, maps, logs, machines, technical data or any other
tangible product or document which has been produced by, received by or
otherwise submitted to the
-47-
Employee during or prior to the Employment Term. Any material breach of the
terms of this paragraph shall be considered Cause.
(b) Non-competition. By and in consideration of the Company's
entering into this Agreement and the Salary, Bonus and benefits to be provided
by the Company hereunder, and further in consideration of the Employee's
exposure to the proprietary information of the Company, the Employee agrees that
the Employee will not, during the Employment Term and for a period of three (3)
years thereafter (or five (5) years thereafter if he is terminated by the
Company for Cause), directly or indirectly own, manage, operate, join, control,
be employed by, or participate in the ownership, management, operation or
control of, or be connected in any manner, including but not limited to holding,
the positions of shareholder, director, officer, consultant, independent
contractor, employee, partner, or investor, with any Competing Enterprise. For
purposes of this paragraph, the term "Competing Enterprise" shall mean any
person, corporation, partnership or other entity engaged in any Competitive
Business within a twenty-five (25) mile radius of any such business operated, or
in the pipeline to be operated (to the extent the Employee has knowledge after
due inquiry of such proposal), by the Company, Lazard Freres Real Estate
Investors LLC ("LFREI") or any affiliate of LFREI. For purposes of this
paragraph, the term "Competitive Business" shall mean assisted living,
independent living, skilled nursing facilities and continuing care retirement
centers (containing assisted living, independent living and skilled nursing
facilities in one campus). During the five years following termination of this
Agreement, upon request, the Employee shall notify the Company of the Employee's
then current employment status.
(c) Non-solicitation. During the Employment Term and for a period
of two years thereafter, the Employee shall not interfere with the Company's
relationship with, or endeavor to entice away from the Company, any person who
at any
-48-
time during the Employment Term was an employee (other than the Employee's
secretary or Xxxxxxx XxxXxxxxx ("Xx. XxxXxxxxx") but, with respect to Xx.
XxxXxxxxx, only if (i) Xx. XxxXxxxxx'x employment with the Company shall have
been terminated by the Company giving notice to Xx. XxxXxxxxx of its intention
not to extend his Employment Term past the second anniversary of the Effective
Date (each, as defined in the Employment Agreement, dated as of the date hereof,
between the Company and Xx. XxxXxxxxx); and (ii) Xx. XxxXxxxxx shall not be
employed in any Competitive Business) or customer of the Company or otherwise
had a material business relationship with the Company.
(d) Remedies. The Employee agrees that any breach of the terms of
this Section 10 would result in irreparable injury and damage to the Company for
which the Company would have no adequate remedy at law; the Employee therefore
also agrees that in the event of said breach or any threat of breach, the
Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the
Employee and/or any and all persons and/or entities acting for and/or with the
Employee, without having to prove damages, and to all costs and expenses,
including reasonable attorneys' fees and costs, in addition to any other
remedies to which the Company may be entitled at law or in equity. The terms of
this paragraph shall not prevent the Company from pursuing any other available
remedies for any breach or threatened breach hereof, including but not limited
to the recovery of damages from the Employee. The Employee and the Company
further agree that the provisions of the covenant not to compete are reasonable.
Should a court or arbitrator determine, however, that any provision of the
covenant not to compete is unreasonable, either in period of time, geographical
area, or otherwise, the parties hereto agree that the covenant should be
interpreted and enforced to the maximum extent which such court or arbitrator
deems reasonable.
-49-
The provisions of this Section 10 shall survive any termination of this
Agreement and the Employment Term and the existence of any claim or cause of
action by the Employee against the Company, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Company
of the covenants and agreements of this Section 10.
11. Proprietary Rights. The Employee represents and warrants that all
patents, patent applications, rights to inventions, copyright registrations and
other license, trademark and trade name rights heretofore owned by the Employee
and relating to the business of the Company or any of its subsidiaries have been
duly transferred to such corporation.
12. Non-Waiver of Rights. The failure to enforce at any time the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement or
any part hereof, or the right of either party to enforce each and every
provision in accordance with its terms.
13. Notices. Every notice relating to this Agreement shall be in
writing and shall be given by personal delivery or by overnight courier or
registered or certified mail, postage prepaid, return receipt requested, as
follows:
(i) If to the Company
Kapson Senior Quarters Corp.
000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxxx, Xxx Xxxx 00000
(i) If to the Employee
Xxxx X. Xxxxxx
c/o Kapson Senior Quarters Corp.
000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxxx, Xxx Xxxx 00000
Notices shall be considered effective when received.
-50-
14. Binding Effect/Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
executors, personal representatives, estates, successors (including, without
limitation, by way of merger) and assigns. Notwithstanding the provisions or the
immediately preceding sentence, the Employee shall not assign all or any portion
of this Agreement without the prior written consent of the Company.
15. Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, between them as to such
subject matter including without limitation the Former Employment Agreement
which shall be null and void as of the date hereof, and the Employee agrees that
he is not entitled to any further benefits thereunder, including, without
limitation, benefits that would or may otherwise have been payable thereunder
upon or following the Merger. This Agreement may not be amended, nor may any
provision hereof be modified or waived, except by an instrument in writing duly
signed by the party to be charged.
16. Severability. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part, such
provision or application shall to that extent be severable and shall not affect
other provisions or applications of this Agreement.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without reference to
the principles of conflict of laws.
18. Modifications and Waivers. No provision of this Agreement may be
modified, altered or amended except by an instrument in writing executed by the
parties hereto. No waiver by either party hereto of any breach by the other
party hereto of any
-51-
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions at the time or at any prior or
subsequent time.
19. Headings. The headings contained herein are solely for the purposes
of reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
21. Excise Tax Limitation
(a) Notwithstanding anything contained in this Agreement to the
contrary, to the extent that any payment or distribution of any type to or for
the benefit of the Employee by the Company, any affiliate of the Company, any
person who acquires ownership or effective control of the Company or ownership
of a substantial portion of the Company's assets (within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder), or any affiliate of such person, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Total Payments") is or will be subject to the excise tax
imposed under Section 4999 of the Code (the "Excise Tax"), then the Total
Payments shall be reduced (but not below zero) if and to the extent that a
reduction in the Total Payments would result in the Employee retaining a larger
amount, on an after-tax basis (taking into account federal, state and local
income taxes and the Excise Tax), than if the Employee received the entire
amount of such Total Payments. Unless the Employee shall have given prior
written notice specifying a different order to the Company to effectuate the
foregoing, the Company shall reduce or eliminate the Total Payments, by first
reducing or eliminating the portion of the Total Payments which are not payable
in cash and then by reducing or eliminating cash payments, in each case in
reverse order
-52-
beginning with payments or benefits which are to be paid the farthest in time
from the Determination (as hereinafter defined). Any notice given by the
Employee pursuant to the preceding sentence shall take precedence over the
provisions of any other plan, arrangement or agreement governing the Employee's
rights and entitlements to any benefits or compensation.
(b) The determination of whether the Total Payments shall be
reduced as provided in Section 21(a) and the amount of such reduction shall be
made at the Company's expense by an accounting firm selected by the Company from
among the six largest accounting firms in the United States (the "Accounting
Firm"). The Accounting Firm shall provide its determination (the
"Determination"), together with detailed supporting calculations and
documentation to the Company and the Employee within ten (10) days of the
Termination Date. If the Accounting Firm determines that no Excise Tax is
payable by the Employee with respect to the Total Payments, it shall furnish the
Employee with an opinion reasonably acceptable to the Employee that no Excise
Tax will be imposed with respect to any such payments and, absent manifest
error, such Determination shall be binding, final and conclusive upon the
Company and the Employee. If the Accounting Firm determines that an Excise Tax
would be payable, the Employee shall have the right to accept the Determination
of the Accounting Firm as to the extent of the reduction, if any, pursuant to
Section 21(a), or to have such Determination reviewed by an accounting firm
selected by the Employee from among the six largest accounting firms in the
United States, at the expense of the Employee, in which case the determination
of such second accounting firm shall be binding, final and conclusive upon the
Company and the Employee.
22. Indemnification. During the Employment Term and thereafter, the
Company shall indemnify the Employee to the fullest extent permitted by law
against any judgments, fines, amounts paid in settlement and reasonable expenses
(including
-53-
attorneys' fees), and advance amounts necessary to pay the foregoing at the
earliest time and to the fullest extent permitted by law, in connection with any
claim, action or proceeding (whether civil or criminal) against the Employee as
a result of the Employee serving as an officer or director of the Company or in
any capacity at the request of the Company, in or with regard to any other
entity, employee benefit plan or enterprise (other than arising out the
employee's acts of willful misconduct, misappropriation of funds or fraud). This
indemnification shall be in addition to, and not in lieu of, any other
indemnification the Employee shall be entitled to pursuant to the Company's
Certificate of Incorporation or By-laws or otherwise. Following the Employee's
termination of employment, the Company shall continue to cover the Employee
under the Company's directors and officers insurance for the period during which
the Employee may be subject to potential liability for any claim, action or
proceeding (whether civil or criminal) as a result of his service as an officer
or director of the Company or in any capacity at the request of the Company, at
the highest level then maintained for any then or former officer or director.
-54-
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by authority of its Board of Directors, and the Employee has hereunto
set his hand, the day and year first above written.
Kapson Senior Quarters Corp.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and
Chief Executive Officer
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
-55-
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of this 23rd day of February, 1998, by and between
Kapson Senior Quarters Corp., a Delaware corporation (the "Company") and Xxxxxxx
XxxXxxxxx (the "Employee").
WHEREAS, the Employee has been and is presently employed by the
Company; and
WHEREAS, the Employee possesses an intimate knowledge of the business
and affairs of the Company and its policies, procedures, methods and personnel;
and
WHEREAS, pursuant to the Amended and Restated Agreement and Plan of
Merger dated as of the date hereof by and among Prometheus Senior Quarters LLC
("Investor"), Prometheus Acquisition Corp. ("PAC") and the Company (the "Merger
Agreement") PAC will be merged into the Company as of the Effective Time (as
defined in the Merger Agreement); and
WHEREAS, Employee was employed pursuant to an employment agreement with
the Company dated as of ____________, 199_ (the "Former Employment Agreement")
and this Agreement as in effect prior to the date hereof superseded the Former
Employment Agreement; and
WHEREAS, the Company desires to amend and restate this Agreement to
ensure the continued services and employment of the Employee on behalf of the
Company and the Employee is willing to render such continued services on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Employment Term. Subject to the terms and provisions of this
Agreement, the Company hereby agrees to employ the Employee and Employee hereby
-56-
agrees to be employed by the Company for the period commencing on the date on
which the Effective Time occurs (the "Effective Date") and ending on the second
anniversary of the date hereof, unless renewed or terminated sooner as
hereinafter provided (the "Employment Term"). The Employment Term shall be
automatically renewed for successive one-year terms unless either party gives
written notice to the other at least six (6) months prior to the expiration of
the then Employment Term of such party's intention that the Employment Term
shall not be so extended. The term of this Agreement shall be coincident with
the Employment Term.
2. Duties. During the Employment Term the Employee shall serve as Chief
Financial Officer of the Company or such other position as may be agreed upon by
Company and Employee and shall perform such duties, services and
responsibilities incident to such position(s) as determined from time to time by
the Board of Directors of the Company (the "Board"). The Employee also agrees to
perform such other duties, services and responsibilities which are consistent
with his position as may from time to time be reasonably requested by the Board.
The Employee shall devote his full business time, attention and skill
to the performance of such duties, services and responsibilities, and will use
his best efforts to promote the interests of the Company. The Employee will not,
without the prior written approval of the Board, engage in any other business
activity which would interfere with the performance of his duties, services and
responsibilities hereunder or which is in violation of policies established from
time to time by the Company. Notwithstanding the foregoing, the Employee shall
be entitled to: (a) serve on corporate, civic or charitable boards or
committees, (b) deliver lectures, fulfill speaking engagements or teach at
educational institutions, and (c) manage personal investments (but in no event
may the Employee own more than 5% of the shares of any publicly traded company
or entity), so
-57-
long as such activities do not materially interfere with the performance of
Employee's duties or responsibilities pursuant to this Agreement.
3. Compensation. (a) Salary. In consideration of the performance by the
Employee of the Employee's obligations during the Employment Term (including any
services as an officer, director, employee, member of any committee of the
Company, or otherwise), the Company will during the Employment Term pay the
Employee a salary (the "Salary") at an annual rate of not less than $175,000.
The Employee's salary shall be reviewed annually by the Company and shall be
increased as of the first day of each fiscal year beginning on or after January
1, 1999 by no less than the increase in the Consumer Price Index - Urban Wage
Earners (or, in the event such index is no longer published, such other index as
is determined in good faith by the Board to be comparable) from the penultimate
month prior to the beginning of the fiscal year being completed to the
penultimate month of the fiscal year being completed (as so increased,
"Salary"). The Salary will be reduced by any amounts paid to the Employee under
any of the Operating Agreements, the manner in which such reductions are to be
effected shall be determined by the Board taking into account the expected
timing of payments pursuant to the Operating Agreements .
(b) Bonus. (i) In further consideration of the performance by the
Employee of the Employee's obligations during the Employment Term (including any
services as an officer, director, employee, member of any committee of the
Company, or otherwise), the Company will pay the Employee an annual bonus (the
"Bonus") in respect of each fiscal year beginning on or after January 1, 1998 of
up to 50% of the Employee's Salary (the "Target Bonus"). The actual amount paid
will be determined in accordance with the following provisions of this Section
3(b).
(ii) If the Company's actual performance for an applicable
fiscal year is at least 90% or more of the budgeted performance (as set forth in
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clause (iii) below), the Employee shall be entitled to receive 100% of the
Target Bonus. If the Company's actual performance for an applicable fiscal year
is 85% or more but less than 90% of the budgeted performance, the Employee shall
be entitled to receive 75% of the Target Bonus. If the Company's actual
performance for an applicable fiscal year is less than 85% of the budgeted
performance, the Employee shall not be entitled to any portion of the Target
Bonus. Notwithstanding the foregoing, if for any fiscal year the Employee is
entitled to less than 100% of the Target Bonus, the Board, in its sole
discretion, may award the Employee with a bonus equal to all or any portion of
the amount by which the amount, if any, to which he is entitled pursuant to this
Section 3(b)(ii) is less than the Target Bonus. If the Company's actual
performance for an applicable fiscal year is greater than 95% of the budgeted
performance, the Board may in its sole discretion determine to increase the
Employee's Bonus to an amount greater than 100% of the Target Bonus.
(iii) For purposes of this Section 3(b), the budget for each
of the fiscal years beginning January 1, 1998 and 1999 is set forth on Appendix
A hereto. The budget for any future fiscal year shall be established by the
Board in a manner consistent with past practice. It is understood that the
budget is prepared on a property by property basis but that the Company's actual
performance versus budgeted performance is to be measured on an overall basis.
If during any fiscal year new properties are acquired or development is
commenced with respect to any new properties not contemplated by the budget,
appropriate adjustments to the budget as established pursuant to this Section
3(b)(iii) will be made by the Board.
(iv) The Employee's Salary and any bonus shall be payable in
accordance with the normal payroll practices of the Company then in effect and
subject to all applicable taxes required to be withheld by the Company pursuant
to federal, state
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or local law. The Employee shall be solely responsible for taxes imposed on the
Employee by reason of any compensation and benefits provided hereunder.
4. Disability. If the Employee is unable to substantially perform his
duties, services and responsibilities hereunder by reason of a physical or
mental infirmity for a total of 180 calendar days in any twelve-month period
during the Employment Term ("Disability"), the Company shall not be obligated to
pay the Employee any Salary or Bonus for any period of absence in excess of such
180 calendar days.
5. Benefits. (a) In addition to the payment of the Salary and Bonus
described above, the Employee shall be entitled to participate in any employee
benefit plans then in effect for similarly situated employees and receive any
other fringe benefits that the Company then provides to similarly situated
employees to the extent the Employee meets the eligibility requirements for any
such plan or benefit. In no event shall the employee benefits provided to the
Employee be, in the aggregate, less favorable to the Employee than the employee
benefits provided to the Employee by the Company as of the date hereof. Stock
options shall not be taken into account for purposes of the foregoing sentence.
(b) The Company shall, during the Employment Term, provide Employee
with a leased automobile at a level and under arrangements commensurate with the
automobile provided under the Former Employment Agreement immediately prior to
the Effective Date.
(c) The Company shall, during the Employment Term, provide long
term disability coverage for the Employee providing for a benefit of at least
sixty-five (65%) of the Employee's Salary based on his own occupation or
comparable
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occupation level and with a waiting period of not longer than six (6) months
("Long Term Disability Coverage"), provided such level of Long Term Disability
Coverage is obtainable on commercially reasonable terms.
(d) The Company shall, during the Employment Term, pay any dues or
other fees for the Employee's membership in the country club of which he is a
member as of the Effective Date, or such other club as is approved by the Board.
The Employee shall be responsible for any income tax due as a result of his
personal use of such country club. The Company, to the extent permitted by law,
shall not treat the Employee's business use of such country club as compensation
to him.
6. Vacations. During the Employment Term the Employee shall be entitled
to the number of paid vacation days in each calendar year determined by the
Company from time to time, but not less than four (4) weeks in any calendar
year.
7. Expenses. The Company shall reimburse the Employee in accordance
with its expense reimbursement policy as in effect from time to time for all
reasonable expenses incurred by the Employee in connection with the performance
of his duties under this Agreement upon the presentation by the Employee of an
itemized account of such expenses and appropriate receipts.
8. Termination. The Employee's employment with the Company and the
Employment Term shall terminate upon the expiration of the Employment Term or
upon the earlier occurrence of any of the following events:
(a) The death of the Employee ("Death").
(b) The mutual agreement between the Company and the Employee on an
early termination date.
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(c) The termination of employment by the Company for Cause. "Cause"
shall mean (a) the Employee being convicted of (or pleading nolo contendere to)
a felony (other than a traffic violation); (b) the repeated refusal of the
Employee to attempt to properly perform his obligations under this Agreement, or
follow any direction of the Board consistent with this Agreement, which in
either case is not remedied within ten (10) business days after receipt by the
Employee of written notice from the Company specifying the details thereof,
provided the refusal to follow a direction shall not be Cause if the Employee in
good faith believes that such direction is not legal, ethical or moral or not
within the scope of his duties pursuant to this Agreement and promptly notifies
the Board in writing of such belief; and provided further that, upon his
request, the Employee shall be entitled to a hearing before the Board within
seven (7) business days following his receipt of written notice from the
Company; (c) the Employee's gross negligence with regard to his duties or
willful misconduct with regard to the business, assets or employees of the
Company which in either event has a material adverse effect on the Company and
its subsidiaries in the aggregate; (d) any other breach by the Employee of a
material provision of this Agreement that remains uncured for twenty (20)
business days after written notice thereof is given to the Employee or such
longer period as may reasonably be required to remedy the default, provided that
the Employee endeavors in good faith to remedy the default; or (e) any act of
fraud or misappropriation of funds involving the Company.
(d) The termination of employment by the Company for Disability.
(e) The termination of employment by the Company other than for
Cause, Disability or Death.
(f) The termination of the Employee's employment upon the date
specified in the written resignation of the Employee for Good Reason stating
with specificity the details of the Good Reason, if the stated Good Reason is
not cured within
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twenty (20) days of the giving of such notice. Notice of Good Reason shall be
given within one hundred eighty (180) days of occurrence of the Good Reason
event. "Good Reason" shall mean (a) any reduction in title or a material
reduction in authority, duties or responsibilities (except temporarily during
any period of physical or mental illness); (b) relocation of the Company's
principal place of business more than thirty (30) miles from the Company's
current principal place of business located at Woodbury, New York; or (c) any
other material breach of any provision of this Agreement by the Company.
In the event of termination of this Agreement, for whatever reason, the
Employee agrees to cooperate with the Company and to be reasonably available to
the Company with respect to continuing and/or future matters arising out of the
Employee's employment or any other relationship with the Company, whether such
matters are business-related, legal or otherwise. The Company shall not require
the Employee to make himself available to the Company pursuant to this paragraph
in any manner that will materially interfere with his then existing employment
relationship. The provisions of this paragraph shall survive termination of this
Agreement.
9. Termination Payments. (a) If the Employee's employment with the
Company terminates for whatever reason, the Company will pay the Employee any
portion of the Salary accrued hereunder on or prior to the date of termination
but not paid to the Employee as of such date.
(b) If the Employee's termination is pursuant to Section 8(e) or
Section 8(f), the Company shall continue to pay the Employee an amount equal to
his Salary (at the rate in effect at the time of his termination of employment)
during the period commencing on the effective date of the Employee's termination
of employment and ending on the second anniversary of the Effective Date (or the
expiration of the then current Employment Term if the Agreement has been
extended pursuant to Section 1). In
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addition, the Company shall continue the Employee's then current medical
coverage for a period of two (2) years following termination of the Employee's
employment.
(c) If the Employee's termination is pursuant to Section 8(a), the
Company shall pay the Employee's Beneficiary (as defined below) an amount equal
to his Salary (at the rate in effect at the time of the Employee's termination
of employment) for a period of six months following the date of the Employee's
Death. For purposes of this provision, the Employee's Beneficiary shall be the
Employee's spouse; if the Employee is not married on his date of Death, the
Employee's children, per stirpes; and otherwise, the Employee's estate.
(d) If the Employee's termination is pursuant to Section 8(d), the
Company shall continue to pay the Employee an amount equal to his Salary (at the
rate in effect at the time of his termination of employment) for a period of six
months following the effective date of the Employee's termination of employment.
The foregoing payments upon termination shall constitute the exclusive
payments due to or in respect of the Employee upon the termination of his
employment under this Agreement, but shall have no effect on any benefits which
may be due the Employee under any plan of the Company which provides benefits
after termination of employment, other than severance pay or salary continuation
which shall be reduced by the amount of any payment received by the Employee
following his termination pursuant to this Agreement. In the event any payments
are required to be made to the Employee pursuant to this Section 9, the Employee
shall be under no obligation to seek other employment and, in such case, there
shall be no offset against any amounts due to the Employee under this Agreement
on account of any remuneration attributable to any subsequent employment that
the Employee may obtain.
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10. Employee Covenants.
(a) Unauthorized Disclosure. The Employee agrees and understands
that in the Employee's position with the Company, the Employee has been and will
be exposed to and receive information relating to the confidential affairs of
the Company, including but not limited to technical information, business and
marketing plans, strategies, customer information, other information concerning
the Company's products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information considered by
the Company to be confidential and/or in the nature of trade secrets. The
Employee agrees that during the Employment Term and thereafter, the Employee
will keep such information confidential and not disclose such information,
either directly or indirectly, to any third person or entity without the prior
written consent of the Company. This confidentiality covenant has no temporal,
geographical or territorial restriction. Upon termination of this Agreement, the
Employee will promptly supply to the Company all material property, keys, notes,
memoranda, writings, lists, files, reports, customer lists, correspondence,
tapes, disks, cards, surveys, maps, logs, machines, technical data or any other
tangible product or document which has been produced by, received by or
otherwise submitted to the Employee during or prior to the Employment Term. Any
material breach of the terms of this paragraph shall be considered Cause.
(b) Non-competition. By and in consideration of the Company's
entering into this Agreement and the Salary, Bonus and benefits to be provided
by the Company hereunder, and further in consideration of the Employee's
exposure to the proprietary information of the Company, the Employee agrees that
the Employee will not, during the Employment Term and for a period of three (3)
years thereafter (or five (5) years thereafter if he is terminated by the
Company for Cause), directly or indirectly own, manage, operate, join, control,
be employed by, or participate in the ownership,
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management, operation or control of, or be connected in any manner, including
but not limited to holding, the positions of shareholder, director, officer,
consultant, independent contractor, employee, partner, or investor, with any
Competing Enterprise; provided, however, in the event the Employee's employment
with the Company shall have been terminated by the Employee giving notice to the
Company of his intention not to extend the Employment Term past the second
anniversary of the Effective Date, this Section 10(b) shall not prohibit the
Employee from accepting the position of "Chief Financial Officer" with any
Competing Enterprise but only if such position is equivalent in all respects to
the Employee's position with the Company including, without limitation, the
Employee's responsibilities and duties provided under this Agreement; provided,
further, in the event the Employee's employment with the Company shall have been
terminated by the Company giving notice to the Employee of its intention not to
extend the Employment Term past the second anniversary of the Effective Date,
this Section 10(b) shall be of no force and effect as of the expiration of the
Employment Term. For purposes of this paragraph, the term "Competing Enterprise"
shall mean any person, corporation, partnership or other entity engaged in any
Competitive Business within a twenty-five (25) mile radius of any such business
operated, or in the pipeline to be operated (to the extent the Employee has
knowledge after due inquiry of such proposal), by the Company, Lazard Freres
Real Estate Investors LLC ("LFREI") or any affiliate of LFREI. For purposes of
this paragraph, the term "Competitive Business" shall mean assisted living,
independent living, skilled nursing facilities and continuing care retirement
centers (containing assisted living, independent living and skilled nursing
facilities in one campus). During the five years following termination of this
Agreement, upon request, the Employee shall notify the Company of the Employee's
then current employment status.
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(c) Non-solicitation. During the Employment Term and for a period
of two years thereafter, the Employee shall not interfere with the Company's
relationship with, or endeavor to entice away from the Company, any person who
at any time during the Employment Term was an employee (other than the
Employee's secretary) or customer of the Company or otherwise had a material
business relationship with the Company.
(d) Remedies. The Employee agrees that any breach of the terms of
this Section 10 would result in irreparable injury and damage to the Company for
which the Company would have no adequate remedy at law; the Employee therefore
also agrees that in the event of said breach or any threat of breach, the
Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the
Employee and/or any and all persons and/or entities acting for and/or with the
Employee, without having to prove damages, and to all costs and expenses,
including reasonable attorneys' fees and costs, in addition to any other
remedies to which the Company may be entitled at law or in equity. The terms of
this paragraph shall not prevent the Company from pursuing any other available
remedies for any breach or threatened breach hereof, including but not limited
to the recovery of damages from the Employee. The Employee and the Company
further agree that the provisions of the covenant not to compete are reasonable.
Should a court or arbitrator determine, however, that any provision of the
covenant not to compete is unreasonable, either in period of time, geographical
area, or otherwise, the parties hereto agree that the covenant should be
interpreted and enforced to the maximum extent which such court or arbitrator
deems reasonable.
The provisions of this Section 10 shall survive any termination of this
Agreement and the Employment Term and the existence of any claim or cause of
action by the Employee against the Company, whether predicated on this Agreement
or
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otherwise, shall not constitute a defense to the enforcement by the Company of
the covenants and agreements of this Section 10.
11. Proprietary Rights. The Employee represents and warrants that all
patents, patent applications, rights to inventions, copyright registrations and
other license, trademark and trade name rights heretofore owned by the Employee
and relating to the business of the Company or any of its subsidiaries have been
duly transferred to such corporation.
12. Non-Waiver of Rights. The failure to enforce at any time the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement or
any part hereof, or the right of either party to enforce each and every
provision in accordance with its terms.
13. Notices. Every notice relating to this Agreement shall be in
writing and shall be given by personal delivery or by overnight courier or
registered or certified mail, postage prepaid, return receipt requested, as
follows:
(i) If to the Company
Kapson Senior Quarters Corp.
000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxxx, Xxx Xxxx 00000
(i) If to the Employee
Xxxxxxx XxxXxxxxx
c/o Kapson Senior Quarters Corp.
000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxxx, Xxx Xxxx 00000
Notices shall be considered effective when received.
14. Binding Effect/Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
executors, personal
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representatives, estates, successors (including, without limitation, by way of
merger) and assigns. Notwithstanding the provisions or the immediately preceding
sentence, the Employee shall not assign all or any portion of this Agreement
without the prior written consent of the Company.
15. Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, between them as to such
subject matter including without limitation the Former Employment Agreement
which shall be null and void as of the date hereof, and the Employee agrees that
he is not entitled to any further benefits thereunder, including, without
limitation, benefits that would or may otherwise have been payable thereunder
upon or following the Merger. This Agreement may not be amended, nor may any
provision hereof be modified or waived, except by an instrument in writing duly
signed by the party to be charged.
16. Severability. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part, such
provision or application shall to that extent be severable and shall not affect
other provisions or applications of this Agreement.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without reference to
the principles of conflict of laws.
18. Modifications and Waivers. No provision of this Agreement may be
modified, altered or amended except by an instrument in writing executed by the
parties hereto. No waiver by either party hereto of any breach by the other
party hereto of any provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions at the time
or at any prior or subsequent time.
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19. Headings. The headings contained herein are solely for the purposes
of reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
21. Excise Tax Limitation
(a) Notwithstanding anything contained in this Agreement to the
contrary, to the extent that any payment or distribution of any type to or for
the benefit of the Employee by the Company, any affiliate of the Company, any
person who acquires ownership or effective control of the Company or ownership
of a substantial portion of the Company's assets (within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder), or any affiliate of such person, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Total Payments") is or will be subject to the excise tax
imposed under Section 4999 of the Code (the "Excise Tax"), then the Total
Payments shall be reduced (but not below zero) if and to the extent that a
reduction in the Total Payments would result in the Employee retaining a larger
amount, on an after-tax basis (taking into account federal, state and local
income taxes and the Excise Tax), than if the Employee received the entire
amount of such Total Payments. Unless the Employee shall have given prior
written notice specifying a different order to the Company to effectuate the
foregoing, the Company shall reduce or eliminate the Total Payments, by first
reducing or eliminating the portion of the Total Payments which are not payable
in cash and then by reducing or eliminating cash payments, in each case in
reverse order beginning with payments or benefits which are to be paid the
farthest in time from the Determination (as hereinafter defined). Any notice
given by the Employee pursuant to
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the preceding sentence shall take precedence over the provisions of any other
plan, arrangement or agreement governing the Employee's rights and entitlements
to any benefits or compensation.
(b) The determination of whether the Total Payments shall be
reduced as provided in Section 21(a) and the amount of such reduction shall be
made at the Company's expense by an accounting firm selected by the Company from
among the six largest accounting firms in the United States (the "Accounting
Firm"). The Accounting Firm shall provide its determination (the
"Determination"), together with detailed supporting calculations and
documentation to the Company and the Employee within ten (10) days of the
Termination Date. If the Accounting Firm determines that no Excise Tax is
payable by the Employee with respect to the Total Payments, it shall furnish the
Employee with an opinion reasonably acceptable to the Employee that no Excise
Tax will be imposed with respect to any such payments and, absent manifest
error, such Determination shall be binding, final and conclusive upon the
Company and the Employee. If the Accounting Firm determines that an Excise Tax
would be payable, the Employee shall have the right to accept the Determination
of the Accounting Firm as to the extent of the reduction, if any, pursuant to
Section 21(a), or to have such Determination reviewed by an accounting firm
selected by the Employee from among the six largest accounting firms in the
United States, at the expense of the Employee, in which case the determination
of such second accounting firm shall be binding, final and conclusive upon the
Company and the Employee.
22. Indemnification. During the Employment Term and thereafter, the
Company shall indemnify the Employee to the fullest extent permitted by law
against any judgments, fines, amounts paid in settlement and reasonable expenses
(including attorneys' fees), and advance amounts necessary to pay the foregoing
at the earliest time and to the fullest extent permitted by law, in connection
with any claim, action or
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proceeding (whether civil or criminal) against the Employee as a result of the
Employee serving as an officer or director of the Company or in any capacity at
the request of the Company, in or with regard to any other entity, employee
benefit plan or enterprise (other than arising out of the employee's acts of
willful misconduct, misappropriation of funds or fraud) . This indemnification
shall be in addition to, and not in lieu of, any other indemnification the
Employee shall be entitled to pursuant to the Company's Certificate of
Incorporation or By-laws or otherwise. Following the Employee's termination of
employment, the Company shall continue to cover the Employee under the Company's
directors and officers insurance for the period during which the Employee may be
subject to potential liability for any claim, action or proceeding (whether
civil or criminal) as a result of his service as an officer or director of the
Company or in any capacity at the request of the Company, at the highest level
then maintained for any then or former officer or director.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by authority of its Board of Directors, and the Employee has hereunto
set his hand, the day and year first above written.
Kapson Senior Quarters Corp.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and
Chief Executive Officer
By: /s/ Xxxxxxx XxxXxxxxx
-------------------------------------
Xxxxxxx XxxXxxxxx
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