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EXHIBIT 99.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this
30th day of July, 1997, by and between Xxxxxx X. Xxxx, a resident of the State
of Kansas ("Employee"), Sterling House Corporation, a Kansas corporation (the
"Company"), and Alternative Living Services, Inc., a Delaware corporation (the
"Tango").
W I T N E S S E T H:
WHEREAS, concurrent with the execution hereof, Tango, Tango
Merger Corporation, a Kansas corporation and a wholly owned subsidiary of Tango
("Merger Sub"), and the Company, have entered into that certain Agreement and
Plan of Merger, dated July 30, 1997 (the "Merger Agreement"), whereby Merger
Sub will be merged with and into the Company, with the Company as the surviving
corporation, and the Company shall become a wholly owned subsidiary of Tango
(the "Merger");
WHEREAS, the Employee has been an employee, officer,
director, and shareholder of the Company;
WHEREAS, after the Merger, the Company, as a wholly owned
subsidiary of Tango, will continue to carry on the business previously carried
on by the Company;
WHEREAS, the Company and Tango each desire to employ Employee
as a senior executive officer of the Company effective at the Effective Time
(as defined in the Merger Agreement);
WHEREAS, the Company and Tango, on the one hand, and
Employee, on the other hand, each desire to enter into this Agreement, pursuant
to which Employee will be employed by the Company and Tango on the terms and
conditions hereinafter set forth, and to make certain other agreements;
NOW, THEREFORE, in consideration of the premises and of the
promises and agreements hereinafter set forth, the parties hereto, intending to
be legally bound, do hereby agree as follows:
SECTION 1. Employment.
Subject to the terms and conditions hereof, the Company and Tango
hereby employ Employee, and Employee hereby accepts such employment. Employee
agrees that he will faithfully perform his duties hereunder and will devote his
full business time to the business and affairs of the Company and Tango.
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SECTION 2. Titles; Location; Duties.
2.1 Titles. Employee shall serve as the President of the Company, and
as such, Employee will report directly to the Board of Directors of the Company
from and after the Relocation Date (as hereinafter defined). Employee shall
also serve as the Chief Operating Officer of Tango, and as such, Employee will
report directly to the Chief Executive Officer and President of Tango.
Employee's duties are set forth in Section 2.3. At no time shall Employee be
requested to perform duties which are not commensurate with his status as the
President of the Company or, after the Relocation Date, as Chief Operating
Officer of Tango. Tango hereby agrees that, during the term hereof, Tango will
nominate Employee for election as a director of Tango and Employee hereby
consents to serve, without additional compensation, when elected, as a director
of Tango.
2.2 Location. Employee's location of employment shall be at the
Company's principal executive offices in Wichita, Kansas; provided, however,
that Employee agrees to relocate his residence to Wisconsin and that the
location of his employment shall be at Tango's principal executive offices in
Brookfield, Wisconsin not later than the first anniversary of the Closing Date
(as defined in the Merger Agreement (the date on which Employee actually so
relocates being herein referred to as the "Relocation Date"); provided,
further, that Tango may not transfer Employee to any other location after the
Relocation Date without Employee's prior written consent unless the transfer
results from the relocation of Tango's principal executive offices and the
actual relocation thereto of other executive officers of Tango holding
positions and responsibilities comparable to those of Employee.
2.3 Duties. Employee, as President of the Company, shall have the
duties customarily associated with that of a president, including, but not
limited to, overall management responsibility for the Company, as well as
responsibility for the coordination and integration of the business and
operations of the Company with the business and operations of Tango after the
Closing Date. Commencing on the Relocation Date, Employee, as Chief Operating
Officer of Tango, also shall have the duties customarily associated with that
of a chief operating officer, including, but not limited to, general management
responsibility for the day-to-day business and operations of Tango and its
subsidiaries.
SECTION 3. Term; Payments Upon Termination.
3.1 Term. The employment of Employee hereunder shall commence on the
Closing Date (as such term is defined in the Merger Agreement) and shall
continue until the earlier of (a) the third anniversary of the Closing Date
(the "Original Term") or (b) the occurrence of any of the following events:
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(i) the death or disability of Employee (disability meaning a
physical illness or incapacity that prevents Employee totally and
permanently from performing all of the substantial and material duties
of his then current position of employment with the Company; provided,
however, that a disability shall be considered to exist only if
Employee is prevented for a period of three (3) consecutive months
following the date such condition commenced and at the end of such
three (3) month period he remained so prevented, or if, prior to the
expiration of such three (3) month period, Employee's attending
physician provides the Company and Tango with a written prognosis that
the illness, injury or other incapacity that results in Employee's
current disabled condition may be reasonably expected to prevent
Employee from performing all of the substantial and material duties of
his then current position of employment with the Company for a period
of at least six (6) consecutive months;
(ii) the mutual written agreement of the parties hereto
terminate Employee's employment hereunder;
(iii) the Company's and Tango's termination of Employee's
employment hereunder for "cause." For the purposes of this Agreement,
"cause" for termination of Employee's employment shall exist only (x)
if Employee is convicted of, or pleads guilty to, any act of fraud,
misappropriation or embezzlement, or any felony, (y) if Employee has
engaged in conduct or activities materially damaging to the Company or
Tango, monetarily or otherwise (it being understood, however, that
neither conduct nor activities pursuant to Employee's exercise of his
good faith business judgment nor unintentional physical damage to any
property of the Company or Tango by Employee shall be a ground for
such a determination by the Company and Tango) or (z) if Employee has
willfully and continuously failed to substantially perform his duties
hereunder (other than any such failure resulting from incapacity due
to physical or mental illness), after a written demand for substantial
performance is delivered to Employee that specifically identifies the
manner in which the Company and Tango believe that Employee has not
substantially performed those duties, and Employee has failed to
resume substantial performance of such duties on a continuous basis
within fourteen (14) days after receiving such demand. Termination for
cause shall be made only upon the vote of not less than a majority of
the Board of Directors of Tango then in office, after reasonable
notice to Employee and an opportunity for Employee, together with
counsel, to be heard before a duly called meeting of such Board; or
(iv) the Employee's termination of his employment with
the Company and Tango for "good reason" upon reasonable
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notice to the Company and Tango. For purposes of this Agreement, "good
reason" shall exist if (x) the Company materially fails to comply with
any of the provisions of this Agreement, other than isolated,
insubstantial or inadvertent failures not occurring in bad faith and
which are remedied by the Company promptly after receipt of notice
thereof given by Employee, (y) the Company shall diminish Employee's
title, duties, base salary or benefits, except, in the case of base
salary or benefits, if such diminution is part of an overall
diminution of base salary and benefits for all senior executive
officers, or (z) any breach by the Company of its agreements set forth
in Section 5.17 of the Merger Agreement.
The Original Term hereof, and any renewal term, shall be
automatically renewed for an additional one (1) year period unless either
Employee or the Company and Tango gives notice to the other party that it does
not wish to renew this Agreement at least ninety (90) days prior to the
expiration of such Original Term or renewal term, as the case may be.
3.2 Payments Upon Termination.
(a) If during the Original Term hereof, or any renewal term,
Employee's employment is terminated (i) by the Company and Tango without
"cause" or, (ii) by Employee for any "good reason," then the Company and Tango
shall pay to Employee the Employee's Base Salary at the rate in effect at the
time notice of termination is given, together with any applicable bonuses
(without pro-ration as provided in Section 4.2) and rights and benefits the
Employee may have under employee benefits plans and programs of the Company and
Tango in existence as of the date of such termination, all for the period (the
"Extended Period") equal to the greater of (x) the balance of the Original Term
or renewal term, as applicable, or (y) the twelve (12) month period following
the date of such termination.
(b) If during the Original Term, or any renewal term, Employee's
employment is terminated as a result of the death or disability of Employee
(disability having the meaning set forth in Section 3.1(i) of this Agreement),
the Company and Tango shall continue to pay Employee (or his estate) his Base
Salary at the rate in effect on the date of death or the date disability is
conclusively determined, as applicable, together with any applicable bonuses
(without pro-ration as provided in Section 4.2) and rights and benefits the
Employee may have under employee benefits plans and programs of the Company and
Tango in existence as of the date of such termination, all for the twelve (12)
month period following the date of death or the date disability is conclusively
determined, as applicable.
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(c) If during the Original Term, or any renewal term, Employee's
employment is terminated (i) by the Company and Tango for "cause" or (ii)
Employee for any reason other than "good reason," then the Company and Tango
shall pay Employee the Base Salary (as hereinafter defined) through the
effective date of termination at the rate in effect at the time notice of
termination is given, and the Company and Tango shall have no further
obligations to Employee under this Agreement subject to the rights and benefits
the Employee may have under employee benefits plans and programs of the Company
and Tango in existence as of the effective date of such termination, if any,
which shall be determined in accordance therewith.
3.3 Payments Upon Change of Control. During the Original Term hereof,
or any renewal term, if there is a Change of Control (as hereinafter defined)
and any one of (i) the Employee's location of employment as set forth herein
changes, (ii) the Company takes any action which would entitle Employee to
terminate his employment for "good reason" pursuant to clauses (x), or (z) of
the definition thereof, or (iii) the Company and Tango shall diminish
Employee's title, duties, base salary or benefits (each of the events described
in the foregoing clauses (i), (ii) and (iii) being herein referred to as a
"Triggering Event"), then Employee may at his election, at any time within one
year after any such Triggering Event, terminate this Agreement (a "Voluntary
Termination"), and Employee shall be entitled to the following compensation, in
addition to the other compensation and bonuses provided for herein:
(a) in lieu of any further salary payments to Employee for
periods subsequent to the date of Voluntary Termination, the Company
and Tango shall pay as severance payment to Employee, no later than
the fifth day following the date of Voluntary Termination, a lump-sum
severance payment to Employee equal to 300% of Employee's annual base
salary rate in effect as of the date of Voluntary Termination or, if
greater, such rate as may be in effect immediately prior to the Change
of Control. In addition, Employee shall be paid an amount equal to
300% of his bonus for the calendar year immediately preceding the year
in which such Voluntary Termination shall occur or, if greater, his
bonus for the full calendar year preceding the year in which such
Change of Control occurs; and
(b) the Company and Tango shall provide Employee with all
employee benefits and programs of the Company which the Employee was
entitled to receive or participate in immediately prior to the
effective date of the Voluntary Termination for the thirty six (36)
month period following the date of such Voluntary Termination.
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For the purposes of this Agreement, "Change of Control" shall mean the
occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used under
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as Amended
(the "Exchange Act"), whether or not such Sections are applicable) is or
becomes, whether by means of any issuance or direct or indirect transfer of
securities, merger, consolidation, liquidation, dissolution or otherwise, the
"beneficial owner" (as that term is used under Rules 13d-3 and 13d-5 under the
Exchange Act, whether or not such rules are applicable, except that a "person"
or "group" shall be deemed to have "beneficial ownership" of all shares that he
or it has the right to acquire, whether such right is exercisable immediately
or only after the passage of time or otherwise), directly or indirectly through
one or more intermediaries, of 35% or more of the total voting power
represented by all of the voting stock of Tango; or
(ii) directly or indirectly, a transfer, sale, lease or other
disposition of all or substantially all of the assets of Tango and its
subsidiaries taken as a whole to any "person" or "group" (as such terms are
used un Sections 13(d) and 14(d) of the Exchange Act, whether or not such
sections are applicable), excluding any disposition to or among Tango and/or
one or more of its subsidiaries; or
(iii) any "person" or "group" (as such terms are used under
Sections 13(d) and 14(d) of the Exchange Act, whether or not such sections are
applicable) otherwise obtains the right or power (through any arrangement,
contract, proxy or other means) to elect or designate a majority of the members
of the Board of Directors of Tango then in office, without regard to whether
such right or power is exercised or invoked and without taking into account the
necessity of a special or annual stockholders meeting or the taking of other
procedural actions to exercise or invoke such right or power.
Section 3.4. If pursuant to Section 3.2 or 3.3, Employee is entitled
to receive benefits under employee benefit plans subsequent to his termination
of employment and such benefits or programs cannot be made available following
termination of Employee in circumstances in which Employee is entitled thereto
hereunder, the Company and Tango shall pay Employee an amount in cash
sufficient to enable Employee to purchase such benefits or programs on his own
behalf. Employee shall retain all grants and awards issued to him under Tango's
stock incentive plans during any period subsequent to termination of Employee's
employment and during which Employee is entitled to receive salary or benefits
pursuant to Section 3.2 or Section 3.3.
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SECTION 4. Compensation.
4.1 Base Salary. For the first twelve (12) months of the term of his
employment hereunder, Employee shall be paid a salary at the annual rate of Two
Hundred Twenty Five Thousand Dollars ($225,000), payable in equal installments
in accordance with the payroll payment practices from time to time adopted by
the Company, subject to required payroll withholding provisions. Thereafter,
the salary to be paid to the Employee shall be determined in the discretion of
the Board of Directors; provided, however, that in no event after the first
twelve (12) months of the term of his employment hereunder shall Employee's
annual rate of salary be less than Two Hundred Sixty Five Thousand Dollars
($265,000). (The annual salary to be paid to Employee under this Agreement is
hereinafter referred to as the "Base Salary".)
4.2 Incentive Bonuses. As additional compensation hereunder, the
Company and Tango may, in the discretion of the Board of Directors of Tango,
pay Employee an annual bonus (the "Annual Bonus") for each fiscal year during
the term of Employee's employment hereunder. Subject to Section 3.2 hereof, if
Employee's employment hereunder is terminated pursuant to the terms of this
Agreement prior to the end of a calendar year, his Annual Bonus with respect to
that year shall be prorated for such portion of that year as he was employed by
the Company and Tango. The Employee shall be eligible to receive an Annual
Bonus of up to 35% of the Base Salary payable if Tango's earnings before
interest, taxes and depreciation are within 10% of such earnings targeted in
the applicable annual business plan as approved by the Board of Directors of
Tango. Any such discretionary or pro rated bonus shall be due and payable upon
the submission and verification of Tango's annual financial statements for the
applicable bonus period.
4.3 Stock Options. The Board of Directors of Tango shall grant to
Employee options to purchase shares of common stock of Tango pursuant to the
terms of the 1995 Incentive Compensation Plan of Tango, which options shall (i)
be granted at such times as the Board of Directors of Tango shall grant options
to other senior executive officers of Tango, (ii) be equivalent in amount and
exercise price to options granted to other senior executive officers of Tango,
and (iii) shall vest and become exercisable at the same rates and times as
options granted to other senior executive officers of Tango.
4.4. Insurance.
(a) Life and Other Insurance. The Company and Tango shall
provide to Employee such term life and group travel, accident, accidental death
and dismemberment insurance and long and short term disability insurance, or
their equivalents, as is provided from time to time for other senior executives
of the
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Company and Tango. The Company and Tango shall be entitled, at their sole
option and expense, to arrange for and keep in effect, during the term of
Employee's employment hereunder, so long as he is insurable, key man insurance
on Employee in an amount determined by the Board of Directors of Tango, such
policy or policies to name Tango or its designee as the beneficiary. Employee
shall reasonably cooperate with the Company and Tango in procuring such key man
insurance as the Company and Tango shall elect to purchase. In addition, the
Company and Tango shall maintain Employee's split dollar and deferred
compensation life insurance policies maintained by the Company immediately
prior to the consummation of the Merger.
(b) Medical Insurance. During the term of Employee's
employment hereunder, the Company and Tango shall, at their expense, provide or
arrange for and keep in effect, hospitalization, major medical and similar
medical and health insurance for Employee and his family, as is provided from
time to time for other senior executives of the Company and Tango.
4.5 Vacation. Employee shall be entitled to four (4) weeks' paid
vacation during each year of his employment hereunder.
4.6 Retirement Benefits. During the term of his employment hereunder,
Employee shall have the same rights as other senior executive officers of the
Company and Tango to participate in all profit-sharing, pension and other
retirement plans as are now, or as may hereafter be, established by the Company
and Tango; provided, however, that for so long as any Company employee benefit
plans are maintained in effect in accordance with Section 5.6 of the Merger
Agreement, Employee shall have the option to continue to participate in such
plans.
4.7 Out-of-Pocket Expenses. The Company and Tango shall reimburse
Employee for all reasonable out-of-pocket expenses incurred by Employee in
connection with the performance of his duties hereunder upon presentation of
appropriate vouchers therefor.
4.8 Automobile Expense Allowance. During the term of Employee's
employment hereunder, the Company and Tango shall pay to Employee an automobile
allowance of $600 per month.
4.9 Moving and Relocation Expenses. In addition to the salary and
benefits set forth in this Section 4, the Company and Tango shall provide to
Employee the following benefits in connection with his moving and relocating to
Wisconsin:
(i) Employee agrees to use reasonable efforts to sell his
residence located at 0000 Xx. Xxxxxxx, Xxxxxxx, Xxxxxx (the
"Residence") prior to the date he relocates to
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Wisconsin, which relocation shall occur no later than the first
anniversary of the date hereof. The Company and Tango agree to
reimburse Employee for his reasonable out-of-pocket expenses incurred
in connection with his efforts to sell the Residence, including, but
not limited to, real estate broker's commissions. If Employee is
unable to sell the Residence prior to the date he relocates to
Wisconsin then the Company or Tango shall purchase the Residence for a
purchase price determined as follows: each of Employee and the Company
or Tango shall obtain an appraisal of the value of the Residence from
licensed real estate appraisers selected by each of them; if such
appraisals do not vary by more than $10,000, the purchase price to be
paid shall be the average of the two appraisals; if such appraisals
vary by more than $10,000, then the two appraisers shall jointly
appoint a third appraiser, whose appraisal shall be final and binding
on the Company, Tango and Employee. The Company and Tango shall bear
the cost of the appraisals and all other costs and expenses related to
such purchase and sale of the Residence from Employee.
(ii) until such time as Employee shall have completely relocated
to Wisconsin, the Company and Tango shall (A) provide Employee a two
(2) bedroom furnished apartment (at a monthly rental rate not to
exceed $1,500), and (B) reimburse Employee for all reasonable costs
and expenses in commuting from Wichita, Kansas to Brookfield,
Wisconsin.
(iii) the Company and Tango shall pay on behalf of Employee or
reimburse Employee, at Employee's option, for the actual costs paid to
third parties relating to Employee's relocation from Kansas to
Wisconsin, including, but not limited to, (a) reasonable moving
company expenses and insurance, and (b) reasonable travel expenses for
Employee and his spouse from Kansas to Wisconsin in order to enable
Employee and his spouse to locate a suitable residence in Wisconsin.
SECTION 5. Restrictive Covenants.
(a) Employee acknowledges that the covenants herein are necessary to
protect the goodwill and other value of the Company and Tango and in view of
the unique and essential nature of the services Employee is to perform
hereunder, the irreparable injury that would befall the Company and Tango
should Employee breach such covenants.
(b) Employee further acknowledges that his services hereunder are of a
special, unique and extraordinary character and that his positions with the
Company and Tango place him in a position of confidence and trust with the
customers and employees
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of the Company and Tango and allow him access to Confidential Information (as
hereinafter defined).
(c) Employee further acknowledges that the type and periods of
restrictions imposed by the covenants in this Section 5 are fair and reasonable
and that such restrictions will not prevent Employee from earning a livelihood.
(d) Employee further acknowledges that (i) the Company and Tango are
engaged in the business of developing, owning, acquiring and operating assisted
living facilities and specialty care facilities for the treatment of
individuals suffering from Alzheimer's disease; (ii) the Company and Tango
conduct their business activity in and throughout the Area (as hereinafter
defined); and (iii) Competing Businesses (as hereinafter defined) are engaged
in businesses like and similar to the business of the Company and Tango.
(e) Having acknowledged the foregoing, Employee covenants and agrees
with the Company and Tango that he will not, directly or indirectly:
(i) while he is in the Company's and Tango's employ and through
the period ending eighteen (18) months after the termination of his
employment for any reason whatsoever (whether voluntarily or
involuntarily), disclose or use for his own benefit, or the benefit of
any other person, except as may be necessary in the performance of his
duties hereunder, any Confidential Information disclosed to Employee
or of which Employee became aware by reason of his employment with or
ownership in the Company and Tango;
(ii) while he is in the Company's and Tango's employ and through
the period ending eighteen (18) months after the termination of his
employment for any reason whatsoever (whether voluntarily or
involuntarily), solicit or divert or appropriate to any Competing
Business, directly or indirectly, on his own behalf or in the service
of or on behalf of any Competing Business, or to solicit or divert or
tempt appropriate to any such Competing Business, within the Area, any
person or entity who was a customer of the Company or Tango at any
time during the last twelve (12) months of Employee's employment
hereunder and with whom Employee had contact during the term of his
employment;
(iii) while he is in the Company's and Tango's employ and through
the period ending eighteen (18) months after the termination of his
employment for any reason whatsoever (whether voluntarily or
involuntarily), employ or attempt to employ or assist anyone else in
employing in any Competing Business in the Area any managerial or key
employee of the Company or Tango (whether or not such employment is
full
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time or is pursuant to a written contract with the Company); and
(iv) while he is in the Company's and Tango's employ and through
the period ending eighteen (18) months after the termination of his
employment for any reason whatsoever (whether voluntarily or
involuntarily) except for termination by the Company and Tango without
cause, engage in or render any services to or be employed by any
Competing Business in the Area in the capacity of officer, managerial
or executive employee, director, consultant or shareholder (other than
as the owner of less than five (5%) percent of the shares of a
publicly-owned corporation whose shares are traded on a national
securities exchange or in the NASDAQ National Market System).
(f) Employee agrees that upon the termination of his employment for
any reason whatsoever (whether voluntarily or involuntarily) he will not take
with him or retain without written authorization, and he will promptly deliver
to the Company or Tango, originals and all copies of all papers, files or other
documents containing any Confidential Information and all other property
belonging to the Company and Tango and in his possession or under his control.
Notwithstanding the immediately preceding sentence, Employee shall be permitted
to retain his personal memorabilia belonging to him, notes taken by him as a
member of the Board of Directors of the Company or Tango, or any committee
thereof, and any other such materials which Employee deems to be of value to
him in the event the same may be needed by Employee in connection with the
defense of any lawsuit, action or proceeding brought against him for any reason
whatsoever.
(g) For purposes of this Section 5, the term (a) "Area" means a one
hundred (100) mile radius of (i) the city hall of Milwaukee, Wisconsin and
Madison, Wisconsin, or (ii) any assisted care facility owned, managed or
operated by the Company or Tango at the time Employee's employment hereunder is
terminated; (b) "Competing Business" means the business of developing, owning,
acquiring or operating living facilities or specialty assisted care facilities
for the treatment of individuals suffering from Alzheimer's disease; and (c)
"Confidential Information" means any and all data and information relating to
the business of the Company or Tango (whether or not constituting a trade
secret) that is, has been or will be disclosed to Employee or of which Employee
became or becomes aware as a consequence of or through his relationship with
the Company or Tango and that has value to the Company or Tango and is not
generally known by its competitors. Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by
the Company or Tango (except where such public disclosure has been made without
authorization by the Company or Tango), or that has been
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independently developed and disclosed by others, or that otherwise enters the
public domain through lawful means. Confidential Information includes, but is
not limited to, information relating to the Company's or Tango's financial
affairs, processes, services, customers, employees or employees' compensation,
research, development, purchasing, accounting or marketing.
(h) Employee acknowledges that irreparable loss and injury would
result to the Company and Tango upon the breach of any of the covenants
contained in this Section 5 and that damages arising out of such breach would
be difficult to ascertain. Employee hereby agrees that, in addition to all
other remedies provided at law or at equity, the Company or Tango may petition
and obtain from a court of law or equity both temporary and permanent
injunctive relief to prevent a breach by Employee of any covenant contained in
this Section 5. The parties hereto agree that all references to Tango in this
Section 5 shall include, unless the context otherwise requires, all
subsidiaries and affiliates of Tango.
SECTION 6. Miscellaneous.
6.1 Binding Effect. This Agreement shall inure to the benefit of and
shall be binding upon Employee, his executor, administrator, heirs, personal
representatives and assigns, and upon the Company and Tango and their
respective successors and assigns; provided, however, that the obligations and
duties of Employee may not be assigned or delegated.
6.2 Governing Law. This Agreement shall be deemed to be made in, and
in all respects shall be interpreted, construed and governed by and in
accordance with, the laws of the State of Wisconsin, without giving effect to
principles of conflicts of laws.
6.3 Invalid Provisions. The parties hereto agree that the agreements,
provisions and covenants contained in this Agreement (including, without
limitation, the agreements, provisions and covenants contained in Section 5
hereof) are severable and divisible, that none of such agreements, provisions
or covenants depends upon any other provision, agreement or covenant for its
enforceability, and that each such agreement, provision and covenant
constitutes an enforceable obligation between the Company and Tango, on the one
hand, and Employee on the other hand. Consequently, the parties hereto agree
that neither the invalidity nor the unenforceability of any agreement,
provision or covenant of this Agreement shall affect the other agreements,
provisions or covenants hereof, and this Agreement shall remain in full force
and effect and be construed in all respects as if such invalid or unenforceable
agreement, provision or covenant were omitted.
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6.4 Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
6.5 Notices. All communications provided for hereunder shall be in
writing and shall be deemed to be given when delivered in person or deposited
in the United States mail, first class, registered mail, return receipt
requested, with proper postage prepaid, and
(a) If to Employee prior to the Relocation Date,
addressed to:
Xxxxxx X. Xxxx
0000 Xx. Xxxxxxx
Xxxxxxx, Xxxxxx 00000
(b) If to the Company and Tango, addressed to:
Sterling House Corporation
000 X. Xxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxx 00000
Attn: Chairman
Alternative Living Services, Inc.
000 X. Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Executive Officer
with a copy to:
Xxxxxx & Xxxxxx LLP
0000 Xxxx Xxxxx, Xxxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx, Esq.
or at such other place or places or to such other person or persons as shall be
designated in writing by the parties hereto in the manner provided above for
notices.
6.6 Counterparts. This Agreement may be executed in one 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.
6.7 Waiver. The waiver by either party hereto of a breach of any
provision, agreement or covenant of this Agreement by the other party hereto
shall not operate or be construed as a waiver
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of any prior or subsequent breach of the same or any other provision, agreement
or covenant by such other party hereto.
6.8 Entire Agreement. This Agreement is intended by the parties hereto
to be the final expression of their agreement and is the complete and exclusive
statement thereof notwithstanding any representation or statements to the
contrary heretofore made. This Agreement may be modified only by written
instrument signed by each of the parties hereto.
6.9 Effectiveness. This Agreement shall become effective at the
Effective Time of the Merger; provided, however, that this Agreement shall
become null and void upon any termination of the Merger Agreement.
14
15
IN WITNESS WHEREOF, the Employee has duly executed, and the
Company has caused this Agreement to be duly executed by its duly authorized
officers, and the parties have caused this Agreement to be delivered, all as of
the day and year first written above.
ALTERNATIVE LIVING SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Its: President
------------------------------------
STERLING HOUSE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Its: Chief Executive Officer
------------------------------------
EMPLOYEE:
/s/ Xxxxxx X. Xxxx
-----------------------------------------
Xxxxxx X. Xxxx
