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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") dated as of ______, 1999 by and
between TENDER LOVING CARE HEALTH CARE SERVICES, INC., a Delaware Corporation
("TLC" or the "Corporation"), and Xxxxx X. Silver, Esq. who resides at 00 Xxxx
Xxxxx, Xxxx Xxxxxxxxxx, XX 00000 ("Executive").
WHEREAS, TLC Builders wishes to secure the services of the Executive on
the terms and conditions set forth below; and
WHEREAS, the Executive is willing to accept employment with TLC on such
terms and conditions.
NOW, THEREFORE, in consideration of their mutual promises and other
adequate consideration, TLC and the Executive do hereby agree as follows:
1. EMPLOYMENT. TLC will employ the Executive as Vice President &
General Counsel, in accordance with the terms and provisions of
this Agreement.
2. DUTIES. The Executive shall be responsible for the day-to-day
legal affairs of the Corporation and its subsidiaries and shall
perform such duties as may from time-to-time be assigned by the
Chief Executive Officer of the Corporation or his designees. The
Executive shall report directly to the Chairman of the Board, CEO
of the Corporation or such other officer of the Corporation as the
Board of Directors may from time-to-time designate. The Executive
shall devote her full business time, attention and skill to the
performance of her duties hereunder and to the advancement of the
business and interests of TLC, subject to limited consulting
duties to Staff Builders, Inc.
3. TERM. This Agreement shall be effective upon execution by TLC and
the Executive, and shall remain in effect until the third
anniversary date hereof, unless terminated earlier pursuant to the
terms hereof.
4. COMPENSATION.
(a) Salary. The Executive shall be paid a salary of $170,000 per annum
during the term hereof, payable in weekly installments. The
Executive's salary will be reviewed by TLC on February 25, 2000
and on February 25, 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 TLC provides or makes
available to its employees.
(c) Expenses. TLC shall reimburse the Executive for all reasonable and
necessary expenses upon submission by the Executive of receipts,
accounts or such other documents reasonably requested by TLC.
(d) Vacation. The Executive shall be entitled to three (3) weeks of
paid vacation during each twelve (12) month period of employment
during the term. As of November 1, 1999, the Executive shall be
entitled to four (4) weeks of vacation during each twelve (12)
month period of employment during the term.
(e) Nothing in this Agreement is intended to cause a reduction in the
Executive's benefits under any TLC' 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 Corporation shall have the right to terminate the Executive's
employment under this Agreement for Cause. For purposes of the
Agreement, the Corporation shall have "Cause" to terminate the
Executive's employment if (i) the Executive assigns, pledges, or
otherwise disposes of her rights and obligations under this
Agreement, or attempts to do the same without the prior written
consent of the Corporation; or (ii) the Executive has been
insubordinate, has materially breached any of the terms or
conditions hereof, has engaged in willful misconduct or has acted
in bad faith; or (iii) the Executive has breached Section 7 of
this Agreement; or (iv) the Executive has committed a felony or
perpetrated a fraud against the Corporation. If the Corporation
terminates this Agreement for Cause, the Corporation's obligations
hereunder shall cease, except for the Corporation's obligation to
pay the Executive the compensation and expenses accrued and unpaid
as of the date of termination in accordance with the provisions
hereof.
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(d) In the event that at any time after a Change of Control (as
defined below) but prior to the end of twelve (12) months after
such Change of Control, the Executive is discharged for any reason
other than for Cause (as defined in (c) above) or resigns for any
reason (other than due to termination for Cause), the Executive
shall receive within thirty (30) days after such discharge or
resignation a lump-sum severance payment equal to 2.99 times her
average annual base salary. For the purposes of this Section 5,
"average annual base salary" shall mean the average of Executive's
annual income in the nature of compensation payable by the Company
and includible in gross income over the five most recent taxable
years ending before the Change of Control. Anything contained
herein to the contrary notwithstanding, for a Change of Control
occurring before 2002, years considered in the base period for
calculating "average annual base salary" shall be determined as
follows:
Years Considered in
Year of Change in Control Calculating Average Base Salary
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1999 1994-1998
2000 1995-1999
2001 1996-2000
A "Change of Control" shall be deemed to occur when a person,
corporation, partnership, association or entity (i) acquires a
majority of the outstanding voting securities of TLC or (ii)
acquires securities bearing a majority of voting power with
respect to election of directors of TLC or (iii) acquires all or
substantially all of TLC's assets.
(e) Notwithstanding anything to the contrary contained herein, all
payments owed to the Executive upon termination of this Agreement
shall be subject to offset by the Corporation for amounts owed to
the corporation by the Executive hereunder.
(f) The obligations of the Corporation and the Executive pursuant to
this Section 5 shall survive the termination of this Agreement.
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6. NOTICES. Any written notice permitted or required under this
Agreement shall be deemed sufficient when hand delivered or posted
by certified or registered mail, postage prepaid, and addressed
to:
if to Tender Loving Care Health Care Services, Inc.:
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Chairman
or
if to the Executive: Xxxxx X. Silver, Esq.
00 Xxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Either party may, in accordance with the provisions of this Section,
give written notice of a change of address, in which event all such notices and
requests shall thereafter be given as above provided at such changed address.
7. CONFIDENTIALITY OBLIGATIONS; NON-COMPETITION BY EXECUTIVE.
(a) The Executive acknowledges that in the course of performing 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 TLC.
(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
business conducted by TLC; or (B) while this Agreement is in
effect and for one (1) year following termination of employment
directly or indirectly solicit or recruit any employee of TLC to
leave the employ of TLC, or solicit any client or customer of TLC
to terminate or modify its business relationship with TLC.
(c) The foregoing restrictions on the Executive set forth in this
Section 7 shall be operative for the benefit of TLC and of any
business owned or controlled by TLC, or any successor or assign of
any of the foregoing.
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(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 TLC irreparable harm for which there is no adequate remedy
at law, and as a result of this, TLC shall be entitled to the
issuance of an injunction, restraining order or other equitable
relief in favor of TLC restraining Executive from committing or
continuing any such violation. Any right to obtain an injunction,
restraining order or other equitable relief hereunder shall not be
deemed a waiver of any right to assert any other remedy TLC may
have at law or equity.
(f) For purposes of this Section 7, the term "TLC" shall refer to the
Corporation and all of its parents, subsidiaries and affiliated
corporations.
8. JURISDICTION. The Executive and TLC consent to the jurisdiction of
the New York Supreme Court for a determination of any disputes as
to any matters whatsoever arising out of or in any way connected
with this Agreement and authorize the service of process on TLC or
Executive by registered mail sent to either party at the address
set forth in Section 6 of this Agreement.
9. HANDBOOK GROUP INSURANCE PROGRAM BOOKLET. The Executive
acknowledges receipt of the TLC Employee Handbook and Group
Insurance Program booklet (together, the "Handbook"). The terms of
the Handbook are incorporated herein by reference.
10. BINDING EFFECT. This Agreement shall bind and inure to the benefit
of TLC, its successors and assigns and shall inure to the benefit
of, and be binding upon, the Executive, 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.
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14. MODIFICATION, TERMINATION OR WAIVER. This Agreement may only be
amended or modified by a written instrument executed by the
parties hereto. The failure of any party at any time to require
performance of any provision of this Agreement shall in no manner
affect the right of such party at a later time to enforce the
same.
15. INDEMNIFICATION. TLC shall indemnify and hold Executive harmless
from any and all damages, costs, fees and expenses, including but
not limited to attorneys' fees, which 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.
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IN WITNESS WHEREOF, TLC and the Executive have executed this Employment
Agreement as of the date first above written.
TENDER LOVING CARE HEALTH
CARE SERVICES, INC.
By:
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Xxxx X. Xxxxx, Chief Operating Officer
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Xxxxx X. Silver
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