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EXHIBIT 10.50
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") dated as of March 1, 1999 by and
between STAFF BUILDERS, INC., a New York corporation (the "Company"), and Xxxxxx
Xxxxxxxx who resides at 17 W. 000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 ("Executive").
WHEREAS, the Company wishes to secure the services of the
Executive on the terms and conditions set forth below; and
WHEREAS, the Executive is willing to accept employment with the Company
on such terms and conditions.
NOW, THEREFORE, in consideration of their mutual promises and other
adequate consideration, the Company and the Executive do hereby agree as
follows:
1. EMPLOYMENT. The Company will employ the Executive as Senior Vice
President-Operations, in accordance with the terms and provisions of this
Agreement.
2. DUTIES. The Executive shall report to the Chief Operating Officer
of the Company and shall be responsible for the management of assigned aspects
of the operations of the home health care business of the Company. The Executive
shall perform such other duties as shall be assigned to the Executive by the
Chief Operating Officer or such officer of the Company as the board of Directors
may from time-to-time designate. The Executive shall devote her full business
time, attention and skills to the performance of her duties hereunder and to the
advancement of the business and interests of the Company. During the time of
this Agreement, the Executive shall be required to base her business office at
the Lake Success Corporate office location. The Executive's base business office
shall not be changed without her prior consent.
3. TERM. This Agreement shall be effective upon execution by the
Company and the Executive, and shall remain in effect until the effective date
of the Distribution of the stock of Tender Loving Care Health Care Services,
Inc., as determined by the U.S. Securities and Exchange Commission, unless
terminated
earlier pursuant to the terms hereof.
4. COMPENSATION.
(a) Salary. The Executive shall be paid a salary of $204,000 per annum
during the term hereof, payable in weekly installments. The Executive's
salary will be reviewed by the Company on June 1, 2000 and June 1,
2001.
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(b) Benefits. The Executive shall be eligible to receive and
participate in, in accordance with their terms, all health, medical or
other insurance benefits which the Company provides or makes available
to its employees.
(c) Expenses. The Company shall reimburse the Executive for all
reasonable and necessary expenses upon submission by the Executive of
receipts, accounts or such other documents reasonably requested by the
Company.
(d) Car Allowance. The Company will lease a Lexus ES300 for the
Executive.
(e) Vacation. The Executive shall be entitled to three (3) weeks of
paid vacation during each twelve (12) month period of employment during
the term.
(g) Nothing in this Agreement is intended to cause a reduction in the
Executive's benefits under the Company's policy or under any benefit
plan in which Executive is a participant at the time of the execution
of this Agreement.
5. TERMINATION: RIGHTS AND OBLIGATIONS UPON TERMINATION.
(a) If the Executive dies during the Term, then the Executive's
employment under this Agreement shall terminate. In such event, the
Executive's estate shall be entitled only to compensation and expenses
accrued and unpaid as at the date of the Executive's death.
(b) If, as a result of the Executive's incapacity due to physical or
mental illness, whether or not job related, the Executive is absent
from her duties hereunder for 90 consecutive days, or an aggregate of
120 days during the Term, the Executive's employment hereunder and this
Agreement shall terminate. In such event, the Executive shall be
entitled only to compensation and expenses accrued and unpaid as at the
date of termination of the Executive's employment.
(c) The Company shall have the right to terminate the Executive's
employment under this Agreement for Cause. For purposes of the
Agreement, the Company shall have "Cause" to terminate the Executive's
employment if (i) the Executive assigns, pledges, or otherwise disposes
of her rights and obligations under this Agreement, or attempts to do
the same without the prior written consent of the Company; or (ii) the
Executive has been insubordinate, has materially breached any of the
terms or conditions hereof, has engaged in willful misconduct or has
acted in bad faith; or (iii)
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the Executive has breached Section 7 of this Agreement; or (iv) the
Executive has committed a felony or perpetrated a fraud against the
Company. If the Company terminates this Agreement for Cause, the
Company's obligations hereunder shall cease, except for the Company's
obligation to pay the Executive the compensation and expenses accrued
and unpaid as of the date of termination in accordance with the
provisions hereof.
(d) In the event that at any time after a Change of Control (as defined
below) but prior to the end of twelve (12) months after such Change of
Control, the Executive is discharged for any reason other than for
Cause (as defined in (c) above) or resigns for any reason (other than
due to termination for Cause), the Executive shall begin to receive
within thirty (30) days after such discharge or resignation a severance
payment equal to 2.99 times the 'average annual base salary' paid to
her at the same rate of pay in effect at the date of the Change of
Control to be paid in weekly installments for the three (3) year period
following such discharge or resignation. For the purposes of this
Section 5, "average annual base salary" shall mean the average of
Executive's annual income in the nature of compensation payable by the
Company and includible in gross income over the five most recent
taxable years ending before the Change of Control. Anything contained
herein to the contrary notwithstanding, for a Change of Control
occurring before 2002, years considered in the base period for
calculating 'average annual base salary' shall be determined as
follows:
Years Considered in Calculating
Year of Change in Control Average Base Salary
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1999 1996 - 1998
2000 1996 - 1999
2001 1996 - 2000
A "Change of Control" shall be deemed to occur when a person,
Company, partnership, association or entity (i) acquires a majority of
the outstanding voting securities of Staff Builders, Inc., a Delaware
corporation ('SBI') or (ii) acquires securities bearing a majority of
voting power with respect to election of directors of SBI or (iii)
acquires all or substantially all of SBI's assets.
(e) Notwithstanding anything to the contrary contained herein, all
payments owed to the Executive upon termination of this Agreement shall
be subject to offset by the Company for amounts owed to the Company by
the Executive hereunder.
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(f) The obligations of the Company and the Executive pursuant to this
Section 5 shall survive the termination of this Agreement.
6. NOTICES. Any written notice permitted or required under this
Agreement shall be deemed sufficient when hand delivered or posted by certified
or registered mail, postage prepaid, and addressed to:
if to Staff Builders, Inc.:
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention:Xxxx X. Xxxxx, COO
or
if to the Executive:
Xxxxxx Xxxxxxxx
17 W. 718 Xxxxxxxxxxx Road, Suite 000
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Either party may, in accordance with the provisions of this Section,
give written notice of a change of address, in which event all such notices and
requests shall thereafter be given as above provided at such changed address.
7. CONFIDENTIALITY OBLIGATIONS; NON-COMPETITION BY EXECUTIVE.
(a) The Executive acknowledges that in the course of performing her
duties hereunder, she will be made privy to confidential and
proprietary information. The Executive covenants and agrees that during
the term of this Agreement and at any time after the termination of
this Agreement, she will not directly or indirectly, for her own
account or as an employee, officer, director, partner, joint venturer,
shareholder, investor, or otherwise, disclose to others or use for her
own benefit or cause or induce others to do the same, any proprietary
or confidential information or trade secrets of the Company.
(b) The Executive agrees that, while this Agreement is in effect, and
for six (6) months following termination of employment, she will not,
within the United States (A) compete, directly or indirectly for her
own account or as an employee, officer, director, partner, joint
venturer, shareholder, investor, or otherwise, with the home health
care or supplemental staffing business conducted by the Company; or (B)
while this Agreement is in effect and for one (1) year following
termination of employment directly or indirectly solicit or recruit any
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employee of the Company to leave the employ of the Company, or solicit
any client or customer of the Company to terminate or modify its
business relationship with the Company.
(c) The foregoing restrictions on the Executive set forth in this
Section 7 shall be operative for the benefit of the Company and of any
business owned or controlled by the Company, or any successor or assign
of any of the foregoing.
(d) Notwithstanding anything herein to the contrary, if the period of
time or the geographical area specified in this Section 7 should be
determined to be unreasonable in a judicial proceeding, then the period
of time and territory of the restriction shall be reduced so that this
Agreement may be enforced in such area and during such period of time
as shall be determined to be reasonable.
(e) The parties acknowledge that any breach of this Section 7 will
cause the Company irreparable harm for which there is no adequate
remedy at law, and as a result of this, the Company shall be entitled
to the issuance of an injunction, restraining order or other equitable
relief in favor of the Company restraining Executive from committing or
continuing any such violation. Any right to obtain an injunction,
restraining order or other equitable relief hereunder shall not be
deemed a waiver of any right to assert any other remedy the Company may
have at law or equity.
(f) For purposes of this Section 7, the term "the Company" shall refer
to the Company and all of its parents, subsidiaries and affiliated
Companies.
8. JURISDICTION. The Executive and the Company consent to the
jurisdiction of the New York Supreme Court for a determination of any disputes
as to any matters whatsoever arising out of or in any way connected with this
Agreement and authorize the service of process on the Company or Executive by
registered mail sent to either party at the address set forth in Section 6 of
this Agreement.
9. HANDBOOK GROUP INSURANCE PROGRAM BOOKLET. The Executive
acknowledges receipt of the Company's Employee Handbook and Group Insurance
Program booklet (together, the "Handbook"). The terms of the Handbook are
incorporated herein by reference.
10. BINDING EFFECT. This Agreement shall bind and inure to
the benefit of the Company, its successors and assigns and shall
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inure to the benefit of, and be binding upon, the Executive, her heirs,
executors and legal representatives.
11. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall in no way affect the validity or enforceability of any
other provision, or any part thereof.
12. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations, and discussions, whether oral or written. of the parties.
14. MODIFICATION, TERMINATION OR WAIVER. This Agreement may only be
amended or modified by a written instrument executed by the parties hereto. The
failure of any party at any time to require performance of any provision of this
Agreement shall in no manner affect the right of such party at a later time to
enforce the same.
15. INDEMNIFICATION. The Company shall indemnify and hold Executive
harmless from any and all damages, costs, fees and expenses, including but not
limited to attorneys' fees, which she may incur as a result of any claim against
her arising out of her performance of her duties under this Agreement provided
that she is not found to have committed intentional misconduct.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Employment Agreement as of the date first above written.
STAFF BUILDERS, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
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