EXHIBIT 10.11
EMPLOYMENT AGREEMENT
Employment Agreement dated as of November 19, 1997 between R. Xxxxxxx
Xxxxxx (the "Executive") and Paragon Health Network, Inc., a Delaware
corporation (the "Company").
WHEREAS, the Company desires to employ the Executive as Senior Vice
President, Development, Mergers and Acquisitions, and the Executive desires to
accept such employment, for the term and upon the other conditions hereinafter
set forth; and
WHEREAS, as a condition of entering into this Agreement, the Executive
agrees to waive the Executive's rights, if any, against the Company and any
predecessor company (including GranCare, Inc.) under (i) any employment
agreement and (ii) any other plan, arrangement or agreement of any kind that
provides any form of severance payments; and
WHEREAS, the parties desire to enter into this Agreement setting forth the
terms and conditions of the employment relationship of the Executive with the
Company;
NOW, THEREFORE, the parties agree as follows:
1. Employment The Company hereby employs the Executive, and the Executive
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hereby accepts employment with the Company, upon the terms and subject to the
conditions set forth herein.
2. Term This Agreement shall commence on the date hereof (the "Effective
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Date") and continue for the two-year period (the "Term") terminating on the
second anniversary of the Effective Date, or upon the Executive's earlier death,
disability or other termination of employment pursuant to Section 11; provided,
however, that commencing on the second anniversary of the Effective Date and on
each anniversary thereafter, the Term shall automatically be extended for one
additional year unless, not later than 90 days prior to any such anniversary,
either party hereto shall have notified the other party hereto in writing that
such extension shall not take effect.
3. Position. During the Term, the Executive shall serve as Senior Vice
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President, Development, Mergers and Acquisitions of the Company or in such other
executive position in the Company as the Executive shall approve.
4. Duties and Reporting Relationship. During the Term, the Executive
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shall, on a full time basis, use his skills and render services to the best of
his abilities in supervising and conducting the operations of the Company and
shall not engage in any other business activities except with the prior written
approval of the Board of Directors of the Company (the "Board") or its duly
authorized designee. The Executive shall also perform such other executive and
administrative duties (not inconsistent with the position of Senior Vice
President, Development, Merger and Acquisitions) as the Executive may reasonably
be expected to be capable of performing on behalf of the Company, as may from
time to time be authorized or directed by the
Board. The Executive agrees to be employed by the Company in all such capacities
for the Term, subject to all the covenants and conditions hereinafter set forth.
5. Place of Performance. The Executive shall perform his duties and
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conduct his business at corporate offices located in Los Angeles, California
except for required travel on the Company's business.
6. Salary and Annual Bonus.
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(a) Base Salary. The Executive's base salary hereunder shall be
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$290,000 a year, payable monthly and prorated for any partial year of
employment. The Board shall review such base salary at least annually and
make such adjustment from time to time as it may deem advisable, but the
base salary shall not at any time be less than $290,000 a year.
(b) Annual Bonus. The Company shall provide the Executive with an
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opportunity to earn upon achievement of target performance, an annual bonus
equal to fifty percent (50%) of his base salary (the "Target Bonus"), with
a minimum bonus of between fifty percent (50%) of Target Bonus upon
achievement of threshold performance and an opportunity to earn up to one
hundred fifty percent (150%) of the Target Bonus for performance in excess
of the targets.
(c) Execution Bonus. On the Effective Date, the Company shall pay to
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the Executive $250,000 (subject to any applicable payroll or other taxes
required to be withheld).
7. Vacation, Holidays and Sick Leave. During the Term, the Executive
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shall be entitled to paid vacation, paid holidays and sick leave in accordance
with the Company's standard policies for its senior vice presidents.
8. Business Expenses. The Executive shall be reimbursed for all ordinary
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and necessary business expenses incurred by him in connection with his
employment upon timely submission by the Executive of receipts and other
documentation as required by the Internal Revenue Code and in conformance with
the Company's normal procedures.
9. Pension and Welfare Benefits. During the Term, the Executive shall be
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eligible to participate fully in all health benefits, insurance programs,
pension and retirement plans and other employee benefit and compensation
arrangements available to vice presidents of the Company generally.
10. Stock Options The Company, pursuant to the terms of its stock option
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plan, may grant to the Executive, stock options to purchase a number of shares
of common stock.
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11. Termination of Employment.
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(a) General. The Executive's employment hereunder may be terminated
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without any breach of this Agreement only under the following
circumstances.
(b) Death or Disability.
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(i) The Executive's employment hereunder shall automatically
terminate upon the death of the Executive.
(ii) If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive is unable to perform the
essential functions of his job for any one hundred eighty (180) days
(whether or not consecutive) during any eighteen (18) month period,
and no reasonable accommodation can be made that will allow Executive
to perform his essential functions, the Company may terminate the
Executive's employment hereunder for any such incapacity (a
"Disability").
(c) Termination by the Company. The Company may terminate the
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Executive's employment hereunder at any time, whether or not for Cause. For
purposes of this Agreement, "Cause" shall mean (i) the failure or refusal
by the Executive to perform his duties hereunder (other than any such
failure resulting from the Executive's incapacity due to physical or mental
illness), which has not ceased within ten (10) days after a written demand
for substantial performance is delivered to the Executive by the Company,
which demand identifies the manner in which the Company believes that the
Executive has not performed such duties, (ii) the engaging by the Executive
in willful misconduct or an act of moral turpitude which is materially
injurious to the Company, monetarily or otherwise (including, but not
limited to, conduct which violates Section 15 hereof) or (iii) the
conviction of the Executive of, or the entering of a plea of nolo
contendere by, the Executive with respect to, a felony.
(d) Termination by the Executive. The Executive shall be entitled to
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terminate his employment hereunder (A) for Good Reason, (B) if his health
should become impaired to an extent that makes his continued performance of
his duties hereunder hazardous to his physical or mental health, provided
that the Executive shall have furnished the Company with a written
statement from a qualified doctor to such effect and provided, further,
that, at the Company's request, the Executive shall submit to an
examination by a doctor selected by the Company and such doctor shall have
concurred in the conclusion of the Executive's doctor or (C) without the
Executive's express written consent, any failure by the Company to comply
with any material provision of this Agreement, which failure has not been
cured within ten (10) days after notice of such noncompliance has been
given by the Executive to the Company. For purposes of this Agreement,
"Good Reason" shall mean the occurrence following a Change in Control
during the term of this Agreement, of any one of the following acts by the
Company, or failures by the Company to act, unless, in the case of any act
or failure to act described
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below, such act or failure to act is corrected prior to the Date of
Termination specified in the Notice of Termination given in respect
thereof:
(i) any material diminution in the Executive's authorities or
responsibilities (including reporting responsibilities) which were in
effect immediately prior to the Change in Control or from his status,
title, position or responsibilities (including reporting
responsibilities) which were in effect following a Change in Control
pursuant to the Executive's consent to accept any such change; the
assignment to him of any duties or work responsibilities which are
inconsistent with such status, title, position or work
responsibilities; or any removal of the Executive from, or failure to
reappoint or reelect him to any of such positions, except if any such
changes are because of Disability, retirement, death or Cause ;
(ii) a reduction by the Company in the Executive's base salary
or Target Bonus as in effect on the date hereof or as the same may be
increased from time to time except for across-the-board salary
reductions similarly affecting all senior executives of the Company
and all senior executives of any Person (as defined in Section
11(h)(i) below) in control of the Company provided in no event shall
any such reduction reduce the Executive's base salary below $290,000.
(iii) the relocation of the Executive's office at which he is to
perform his duties, to a location more than fifty (50) miles from the
location at which the Executive performed his duties prior to the
Change in Control, except for required travel on the Company's
business to an extent substantially consistent with his business
travel obligations prior to the Change in Control;
(iv) the failure by the Company, without the Executive's
consent, to pay to the Executive any portion of the Executive's
current compensation;
(v) the failure by the Company to continue to provide the
Executive with benefits substantially similar in value to the
Executive in the aggregate to those enjoyed by the Executive under any
of the Company's pension, life insurance, medical, health and
accident, or disability plans in which the Executive was participating
immediately prior to the Change in Control, unless the Executive
participates after the Change in Control in other comparable benefit
plans generally available to senior executives of the Company and
senior executives of any Person in control of the Company;
(vi) any purported termination of the Executive's employment
which is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 11(f) below; for purposes of this
Agreement, no such purported termination shall be effective.
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The Executive's continued employment for 6 months following any act or failure
to act constituting Good Reason hereunder without the delivery of a Notice of
Termination shall constitute consent to, and a waiver of rights with respect to,
such act or failure to act.
(e) Voluntary Resignation. Should the Executive wish to resign from
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his position with the Company or terminate his employment for other than
Good Reason during the Term, the Executive shall give sixty (60) days
written notice to the Company ("Notice Period"), setting forth the reasons
and specifying the date as of which his resignation is to become effective.
During the Notice Period, the Executive shall cooperate fully with the
Company in achieving a smooth transition of the Executive's duties and
responsibilities to such person(s) as may be designated by the Company. The
Company reserves the right to accelerate the Date of Termination by giving
the Executive notice and payment of amounts due to the Executive under
Section 6(a) and, to the extent applicable, Section 6(b) for the balance of
the Notice Period. The Company's obligation to continue to employ the
Executive or to continue payment of the amounts described in the preceding
sentence shall cease immediately if: (1) the Executive has not satisfied
his obligations to cooperate fully with a smooth transition or (2) the
Company has grounds to terminate the Executive's employment immediately for
Cause. If the Executive terminates his employment for other than Good
Reason within twelve (12) months from the Effective Date, the Executive
shall be obligated to refund the amount that was received under Section
6(c) of this Agreement.
(f) Notice of Termination. Any purported termination of the
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Executive's employment by the Company or by the Executive shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 19. "Notice of Termination" shall mean a notice
that shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
(g) Date of Termination. "Date of Termination" shall mean (i) if the
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Executive's employment is terminated because of death, the date of the
Executive's death, (ii) if the Executive's employment is terminated for
Disability, the date Notice of Termination is given, (iii) if the
Executive's employment is terminated pursuant to Subsection (c), (d) or (e)
hereof or for any other reason (other than death or Disability), the date
specified in the Notice of Termination which shall not be less than sixty
(60) days from the date such Notice of Termination is given.
(h) Change in Control. For purposes of this Agreement, a Change in
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Control of the Company shall have occurred if
(i) any "Person" (as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934 (the "Exchange Act") as modified and
used in Sections 13(d) and 14(d) of the Exchange Act (other than (1)
the Company or any of its subsidiaries, (2) any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or any of its subsidiaries, (3) an
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underwriter temporarily holding securities pursuant to an offering of
such securities, (4) any corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions
as their ownership of the Company's common stock or (5) Apollo
Management, LP, any of its affiliates and any investments funds
managed by it (collectively, "Apollo"))), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing more
than 50% of the combined voting power of the Company's then
outstanding voting securities;
(ii) during any period of not more than two (2) consecutive
years, not including any period prior to the date of this Agreement,
individuals who at the beginning of such period constitute the Board,
and any new director (other than a director designated by a person
(other than Apollo) who has entered into an agreement with the Company
to effect a transaction described in clause (i), (iii), or (iv) of
this Section 1l(h)) whose election by the Board or nomination for
election by the Company's stockholders was (A) made pursuant to the
Stockholders Agreement affecting the Company dated November 5, 1997 or
(B) approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority
thereof;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
both (A) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or parent entity)
50% or more of the combined voting power of the voting securities of
the Company or such surviving or parent entity outstanding immediately
after such merger or consolidation or (B) a merger or consolidation in
which no person acquires 50% or more of the combined voting power of
the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets (or
any transaction having a similar effect) other than such a sale or
disposition to Apollo.
(i) Return of Property. When the Executive ceases to be employed by
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the Company, the Executive will promptly surrender to the Company all
Company property, including without limitation, all records and other
documents obtained by him or entrusted to him during the course of his
employment with the Company provided, however, that the Executive may
retain copies of such documents as necessary for the Executive's personal
records for federal income tax purposes.
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12. Compensation During Disability; Death or Upon Termination.
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(a) During any period that the Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), the Executive shall continue to receive his base
salary at the rate then in effect for such period until his employment is
terminated pursuant to Section 1l(b)(ii) hereof, provided that payments so
made to the Executive during the Disability Period shall be reduced by the
sum of the amounts, if any, payable to the Executive with respect to such
period under disability benefit plans of the Company or under the Social
Security disability insurance program, and which amounts were not
previously applied to reduce any such payment.
(b) If the Executive's employment is terminated by his death or
Disability, the Company shall pay (i) any base salary due to the Executive
under Section 6(a) through the date of such termination and (ii) an amount
equal to the Target Bonus he would have received for the fiscal year that
ends on or immediately after the Date of Termination, assuming the Company
achieved the lowest target level for which a bonus is paid under the plan
described in Section 6(b), prorated for the period beginning on the first
day of the fiscal year in which occurs the Date of Termination through the
Date of Termination. In addition, if the Executive's employment is
terminated by his death, the Company shall continue to pay to his estate
his salary for an additional six months at the rate then in effect.
(c) If the Executive's employment is terminated by the Company for
Cause or by the Executive for other than Good Reason, the Company shall pay
the Executive his base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, and the Company shall
have no further obligations to the Executive under this Agreement.
(d) If following a Change in Control (A) the Company terminates the
Executive's employment without Cause, or (B) the Executive terminates his
employment for Good Reason, then
(i) the Company shall pay the Executive his base salary
through the Date of Termination at the rate in effect at the time
Notice of Termination is given and all other unpaid amounts, if any,
to which the Executive is entitled as of the Date of Termination under
any compensation plan or program of the Company, at the time such
payments are due;
(ii) in lieu of any further salary payments to the Executive
for periods subsequent to the Date of Termination, the Company shall
pay as liquidated damages to the Executive an aggregate amount equal
to the product of (A) the sum of (1) the Executive's base salary at
the rate in effect of the Date of Termination and (2) the average of
the annual bonuses actually paid to the Executive by the Company with
respect to the two (2) fiscal years which immediately precede the year
of the Term which the Date of Termination occurs
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provided if there was bonus or bonuses paid to the Executive with
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respect only to one fiscal year that immediately precedes the year
within the Term in which the Date of Termination occurs, then such
single year's bonus or bonuses shall be utilized in the calculation
pursuant to this clause (2), provided, further, that for purposes of
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this Agreement, if the Date of Termination occurs before the end of
the first fiscal year that ends after the Effective Date, the amount
of the bonus paid by the Company to the Executive shall be deemed to
be the Target Bonus and (B) the number two (2);
(iii) the Company shall pay the Executive an amount equal to the
prorated Target Bonus that would have been paid for the period
beginning on the first day of the fiscal year in which the Date of
Termination occurs;
(iv) the Company shall continue coverage for the Executive, on
the same terms and conditions as would be applicable if the Executive
were an active Employee, under the Company's life insurance, medical,
health and similar welfare benefit plans (other then group disability
benefits) for a period of twenty-four (24) months. Benefits otherwise
receivable by the Executive pursuant to this Section 12(d)(iv) shall
be reduced to the extent comparable benefits are actually received by
the Executive from a subsequent employer during the period during
which the Company is required to provide such benefits, and the
Executive shall report any such benefits actually received by him to
the Company; and
(v) the payments provided for in this Section 12(d) (other
than Section 12(d)(iv)) shall be made not later than the thirtieth
(30th) day following the Date of Termination, provided, however, that
if the amounts of such payments, and the limitation on such payments
set forth in Section 16 hereof, cannot be finally determined on or
before such day, the Company shall pay to the Executive on such day an
estimate, as determined in good faith by the Company, of the minimum
amount of such payments to which the Executive is clearly entitled and
shall pay the remainder of such payments (together with interest at
the rate provided in section 1274(b)(2)(B) of the Code (as defined in
Section 16)) as soon as the amount thereof can be determined but in no
event later than the sixtieth (60th) day after the Date of
Termination. In the event that the amount of the estimated payments
exceeds the amount determined by the Company within six (6) months
after payment to have been due, such excess shall constitute a loan by
the Company to the Executive, payable no later than the thirtieth
(30th) business day after demand by the Company (together with
interest at the rate provided in section 1274(b)(2)(B) of the Code).
At the time that payments are made under this Section 12(d), the
Company shall provide the Executive with a written statement setting
forth the manner in which such payments were calculated and the basis
for such calculations including, without limitation, any opinions or
other advice the Company has received from outside counsel, auditors
or consultants (and any such opinions or advice which are in writing
shall be attached to the statement).
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(vi) If the Executive continues to be employed by the Company
for one (1) year after a Change of Control and has not by such time
given Notice of Termination for Good Reason, the Executive will have
waived his right to exercise his rights under Section 12(d) hereof
with respect to any act or failure to act which constitutes Good
Reason.
(e) If the Executive terminates his employment under clause (C) of
Section 11(d) hereof or, prior to any Change of Control, the Company
terminates the Executive's employment without Cause, then
(i) the Company shall pay the Executive his base salary
through the Date of Termination at the rate in effect at the time
Notice of Termination is given and all other unpaid amounts, if any,
to which the Executive is entitled as of the Date of Termination under
any compensation plan or program of the Company, at the time such
payments are due;
(ii) the Company shall pay to the Executive the greater of
either (A) the remaining amount of base salary owed for the Term; or
(B) an aggregate amount equal to the sum of (1) nine (9) months of the
Executive's base salary at the rate in effect as of the Date of
Termination plus (2) one (1) additional month of the Executive's base
salary at such rate for each full year of service beyond the first
anniversary of this Agreement, not to exceed eighteen (18) months of
base salary payments; such amount to be paid in substantially equal
monthly installments during the period commencing with the month
immediately following the month in which the Date of Termination
occurs or in a lump sum payment, as decided by the Company;
(iii) the Company shall pay the Executive his Target Bonus
prorated for the period beginning on the first day of the fiscal year
in which occurs the Date of Termination through the Date of
Termination;
(iv) the Company shall continue coverage for the Executive, on
the same terms and conditions as would be applicable if the Executive
were an active employee, under the Company's life insurance, medical,
health, and similar welfare benefit plans (other then group
disability) for a period not to exceed the number of months the
Executive will be paid under Section 12(e)(ii) beginning on the Date
of Termination;
(v) benefits otherwise receivable by the Executive pursuant to
clause (iv) of this Section 12(e) shall be reduced to the extent
comparable benefits are actually received by the Executive from a
subsequent employer during the period which the Company is required to
provide such benefits, and the Executive shall report any such
benefits actually received by him to the Company;
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(vi) the payments made to the Executive under Section 12(e)
hereof will be reduced by the amount of payments provided for by any
subsequent employer of the executive for a position obtained after the
Date of Termination.
(f) If the Executive experiences a termination under Section 12(d) or
12(e) hereof, until the Executive finds another full-time position or for 6
months, whichever is earlier, the Company shall provide the Executive with
professional outplacement services of the Executive's choosing and shall
reimburse the Executive documented incidental outplacement expenses
directly related to the Executive's job search such as resume mailing,
interview trips, and clerical support, subject to a maximum cost of $10,000
for such outplacement services and incidental expenses. The Executive's
choice of professional outplacement services is subject to the Company's
reasonable prior approval. If the Company has not approved or disapproved
of the Executive's choice within ten (10) business days of receiving notice
of such choice, the Company will be deemed to have given is approval. Any
approval by the Company will be in writing and will state the basis for
such disapproval. The Executive will not be entitled to receive cash or
lieu of the professional outplacement services provided pursuant to this
Section.
(g) If the Executive shall terminate his employment under clause (B)
of Sections 11(d) or 11(e) hereof, the Company shall pay the Executive his
base salary through the Date of Termination at the rate in effect at the
time Notice of Termination is given, and the Company shall have no further
obligations to the Executive under this Agreement.
(h) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 12 by seeking other employment or
otherwise, and, except as provided in Sections 12(e) hereof, the amount of
any payment or benefit provided for in this Section 12 shall not be reduced
by any compensation earned by the Executive as the result of employment by
another employer or by retirement benefits.
(i) Release. Prior to making any payment pursuant to Sections
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12(d)(iii) and 12(d)(iv) or Sections 12(e)(ii) and 12(e)(iii), whichever is
applicable, the Company shall have the right to require the Executive to
sign, and the Executive hereby agrees to sign, an agreement to be bound by
the terms of Section 15 of this Agreement and a waiver of all claims the
Executive may have (including any claims under the Age Discrimination in
Employment Act), and the Company may withhold payment of such amount until
the period during which the Executive may revoke such waiver (normally
seven days) has elapsed.
13. Representations and Covenants.
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(a) The Company represents and warrants that this Agreement has been
authorized by all necessary corporate action of the Company and is a valid
and binding agreement of the Company enforceable against it in accordance
with its terms.
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(b) The Executive represents and warrants that he is not a party to
any agreement or instrument which would prevent him from entering into or
performing his duties in any way under this Agreement. The Executive agrees
and covenants that he will obtain, and submit to, such physical
examinations as may be necessary to facilitate the Company obtaining an
insurance policy for its benefit insuring the life of the Executive.
14. Successors: Binding Agreement.
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(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place.
(b) This Agreement is a personal contract and the rights and
interests of the Executive hereunder may not be sold, transferred,
assigned, pledged, encumbered, or hypothecated by him, except as otherwise
expressly permitted by the provisions of this Agreement. This Agreement
shall inure to the benefit of and be enforceable by the Executive and his
personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Executive should die
while any amount would still be payable to him hereunder had the Executive
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to his
devisee, legatee or other designee or, if there is no such designee, to his
estate.
15. Confidentiality and Non-Competition Covenants.
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(a) The Executive covenants and agrees that he will not at any time
during or at any time after the end of the Term, directly or indirectly,
use for his own account, or disclose to any person, firm or corporation,
other than authorized officers, directors and employees of the Company or
its subsidiaries, Confidential Information (as hereinafter defined) that is
treated as trade secrets by the Company and will not at any time during or
for a period equal to the number of payments which are being made under
Section 12(e) hereof directly or indirectly, use for his own account, or
disclose to any person, firm or corporation, other than authorized
officers, directors and employees of the Company or its subsidiaries, any
other Confidential Information. As used herein, "Confidential Information"
of the Company means information of any kind, nature or description which
is disclosed to or otherwise known to the Executive as a direct or indirect
consequence of his association with the Company, which information is not
generally known to the public or in the business in which the Company is
engaged or which information relates to specific investment opportunities
within the scope of the Company's business which were considered by the
Executive or the Company during the term of this Agreement. Confidential
Information that is treated as confidential trade secrets by the Company
shall include, but not be limited to, strategic operating plans and
budgets, policy and procedure manuals, computer programs, financial forms
and information, patient or resident lists and accounts, supplier
information, accounting forms and procedures, personnel policies,
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information pertaining to the salaries, positions and performance reviews
of the Company's employees, information on the methods of the Company's
operations, research and data developed by or for the benefit of the
Company and information relating to revenues, costs, profits and the
financial condition of the Company. During the Term and for a period of two
years following the termination of the Executive's employment, the
Executive shall not induce any employee of the Company or its subsidiaries
to terminate his or her employment by the Company or its subsidiaries in
order to obtain employment by any person, firm or corporation affiliated
with the Executive.
(b) The Executive covenants and agrees that any information,
materials, ideas, discoveries, techniques or programs developed or
discovered by the Executive in connection with the performance of his
duties hereunder shall remain the sole and exclusive property of the
Company and, to the extent it constitutes Confidential Information, shall
be subject to the covenants contained in the preceding paragraph.
(c) The Executive covenants and agrees that during the Term and, if
the Executive's employment is terminated by the Executive for other than
Good Reason, for a period of two (2) years following the termination of the
Executive's employment, the Executive shall not, directly or indirectly,
own an interest in, operate, join, control, or participate as a partner,
director, principal, officer, or agent of, enter into the employment of, or
act as a consultant to, in any case in which he has control or supervision
over a significant portion of any entity (i) whose principal business is
the operation of one or more skilled nursing facilities or (ii) which
operates a skilled nursing business that is material in relation to the
Company's comparable business and (iii) in either case, which derives at
least 10% of its skilled nursing facility revenue from facilities which are
located within 35 miles of centers or facilities operated by the Company.
Notwithstanding anything herein to the contrary, the foregoing provisions
of this Section 15(c) shall not prevent the Executive from acquiring
securities representing not more than 5% of the outstanding voting
securities of any publicly held corporation.
(d) Without limiting the right of the Company to pursue all other
legal and equitable remedies available for violation by the Executive of
the covenants contained in this Section 15, it is expressly agreed by the
Executive and the Company that such other remedies cannot fully compensate
the Company for any such violation and that the Company shall be entitled
to injunctive relief, without the necessity of proving actual monetary
loss, to prevent any such violation or any continuing violation thereof.
Each party intends and agrees that if in any action before any court or
agency legally empowered to enforce the covenants contained in this Section
15, any term, restriction, covenant or promise contained herein is found to
be unreasonable and accordingly unenforceable, then such term, restriction,
covenant or promise shall be deemed modified to the extent necessary to
make it enforceable by such court or agency. The covenants contained in
Section 15 shall survive the conclusion of the Executive's employment by
the Company.
12
16. Prohibition on Parachute Payments.
---------------------------------
(a) Notwithstanding any other provisions of this Agreement, any
payment or benefit received or to be received by the Executive in
connection with a Change in Control of the Company or the termination of
the Executive's employment (whether pursuant to the terms of this Agreement
or any other plan, arrangement or agreement with the Company, any person
whose actions result in a Change in Control or any Person affiliated with
the Company or such Person) (all such payments and benefits, including,
without limitation, base salary and bonus payments, being hereinafter
called "Total Payments") would not be deductible (in whole or in part), by
the Company, an affiliate or any Person making such payment or providing
such benefit as a result of section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), then, to the extent necessary to make such
portion of the Total Payments deductible (and after taking into account any
reduction in the Total Payments provided by reason of section 280G of the
Code in such other plan, arrangement or agreement), (A) such cash payments
shall first be reduced (if necessary, to zero), and (B) all other non-cash
payments by the Company to the Executive shall next be reduced (if
necessary, to zero). For purposes of this limitation (i) no portion of the
Total Payments the receipt or enjoyment of which the Executive shall have
effectively waived in writing prior to the Date of Termination shall be
taken into account, (ii) no portion of the Total Payments shall be taken
into account which in the opinion of tax counsel selected by the Company's
independent auditors and reasonably acceptable to the Executive does not
constitute a "parachute payment" within the meaning of section 280G(b)(2)
of the Code, including by reason of section 280G(b)(4)(A) of the Code,
(iii) such payments shall be reduced only to the extent necessary so that
the Total Payments (other than those referred to in clauses (i) or (ii)) in
their entirety constitute reasonable compensation for services actually
rendered within the meaning of section 280G(b)(4)(B) of the Code or are
otherwise not subject to disallowance as deductions, in the opinion of the
tax counsel referred to in clause (ii); and (iv) the value of any non-cash
benefit or any deferred payment or benefit included in the Total Payments
shall be determined by the Company's independent auditors in accordance
with the principles of sections 280G(d)(3) and (4) of the Code.
(b) If it is established pursuant to a final determination of a court
or an Internal Revenue Service proceeding that, notwithstanding the good
faith of the Executive and the Company in applying the terms of this
Section 16, the aggregate "parachute payments" paid to or for the
Executive's benefit are in an amount that would result in any portion of
such "parachute payments" not being deductible by reason of section 280G of
the Code, then the Executive shall have an obligation to pay the Company
upon demand an amount equal to the sum of (i) the excess of the aggregate
"parachute payments" paid to or for the Executive's benefit over the
aggregate "parachute payments" that could have been paid to or for the
Executive's benefit without any portion of such "parachute payments" not
being deductible by reason of section 280G of the Code; and (ii) interest
on the amount set forth in clause (i) of this sentence at the rate provided
in section 1274(b)(2)(B) of the Code from the date of the Executive's
receipt of such excess until the date of such payment.
13
17. Entire Agreement. This Agreement contains all the understandings
----------------
between the parties hereto pertaining to the matters referred to herein,
and on the Effective Date shall supersede all undertakings and agreements,
whether oral or in writing, previously entered into by them with respect
thereto. The Executive represents that, in executing this Agreement, he
does not rely and has not relied upon any representation or statement not
set forth herein made by the Company with regard to the subject matter,
bases or effect of this Agreement or otherwise.
18. Amendment or Modification. Waiver. No provision of this Agreement
---------------------------------
may be amended or waived unless such amendment or waiver is agreed to in
writing, signed by the Executive and by a duly authorized officer of the
Company. No waiver by any party hereto of any breach by another party
hereto of any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of a similar or dissimilar
condition or provision at the same time, any prior time or any subsequent
time.
19. Notices. Any notice to be given hereunder shall be in writing and
-------
shall be deemed given when delivered personally, sent by courier or
telecopy or registered or certified mail, postage prepaid, return receipt
requested, addressed to the party concerned at the address indicated below
or to such other address as such party may subsequently give notice of
hereunder in writing:
To Executive at: R. Xxxxxxx Xxxxxx
000 Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
To the Company at: Paragon Health Network, Inc.
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Any notice delivered personally or by courier under this Section
19 shall be deemed given on the date delivered and any notice sent by
telecopy or registered or certified mail, postage prepaid, return receipt
requested, shall be deemed given on the date telecopied or mailed.
20. Severability. If any provision of this Agreement or the
------------
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement or the
application of such provision to such person or circumstances other than
those to which it is so determined to be invalid and unenforceable, shall
not be affected thereby, and each provision hereof shall be validated and
shall be enforced to the fullest extent permitted by law.
21. Survivorship. The respective rights and obligations of the
------------
parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and
obligations.
14
22. Governing Law: Attorney's Fees.
------------------------------
(a) This Agreement will be governed by and construed in
accordance with the laws of the State of Georgia, without regard to
its conflicts of laws principles.
(b) The prevailing party in any dispute arising out of this
Agreement shall be entitled to be paid its reasonable attorney's fees
incurred in connection with such dispute from the other party to such
dispute.
23. Dispute Resolution. The Executive and the Company shall not
------------------
initiate legal proceedings relating in any way to this Agreement or to the
Executive's employment or termination from employment with the Company
until thirty (30) days after the party against whom the claim is made
("respondent") receives written notice from the claiming party of the
specific nature of any purported claims and the amount of any purported
damages attributable to each such claim. The Executive and the Company
further agree that if respondent submits the claiming party's claim to the
CPR Institute for Dispute Resolution, JAMS/Endispute, or other local
dispute resolution service for nonbinding mediation prior to the expiration
of such thirty (30) day period, the claiming party may not institute
arbitration or other legal proceedings against respondent until the earlier
of: (a) the completion of good-faith mediation efforts or (b) 90 days after
the date on which the respondent received written notice of the claimant's
claim(s); provided, however, that nothing in this Section 23 shall prohibit
the Company from pursuing injunctive or other equitable relief against the
Executive prior to, contemporaneous with, or subsequent to invoking or
participating in these dispute resolution processes. The Company shall pay
the cost of the mediator.
24. Headings. All descriptive headings of sections and paragraphs in
--------
this Agreement are intended solely for convenience, and no provision of
this Agreement is to be construed by reference to the heading of any
section or paragraph.
25. Withholdings. All payments to the Executive under this Agreement
------------
shall be reduced by all applicable withholding required by federal, state
or local tax laws.
26. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
27. Release of Prior Employment Agreement. The Executive hereby
-------------------------------------
releases the Company and any predecessor company (including GranCare, Inc.
and Living Centers of America, Inc.) from all obligations under the
employment agreements entered into by the Executive and GranCare, Inc.
dated February 12, 1997, including any obligation to pay severance or other
post-termination benefits, which shall be upon the execution hereof
terminated and of no further force or effect; provided, however, that in no
event shall this release affect the Executive's rights under any grant or
award under any stock option or stock award plans of the Company and any
predecessor company (including GranCare, Inc. and Living Centers of
America, Inc.).
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PARAGON HEALTH NETWORK, INC.
BY: /s/ Xxxxx Xxxxxx Xxxxxxx
-----------------------------------
NAME: Xxxxx Xxxxxx Xxxxxxx
TITLE: Senior Vice President
and General Counsel
EXECUTIVE
/s/ R. Xxxxxxx Xxxxxx
-------------------------------------
R. Xxxxxxx Xxxxxx
16
