1
EXHIBIT 10.13
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") dated as of October 20, 1999 by and
between STAFF BUILDERS, INC., a New York corporation (the "Company"), and Xxxxxx
Xxxxxxxx who resides at 000 Xxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000 ("Executive").
WHEREAS, the Company wishes to secure the services of the Executive on
the terms and conditions set forth below; and
WHEREAS, the Executive is willing to accept employment with the Company
on such terms and conditions.
NOW, THEREFORE, in consideration of their mutual promises and other
adequate consideration, the Company and the Executive do hereby agree as
follows:
1. EMPLOYMENT. The Company will employ the Executive as Senior
Vice President-Operations, in accordance with the terms and
provisions of this Agreement.
2. DUTIES. The Executive shall report to the Chief Operating
Officer of the Company and shall be responsible for the
management of assigned aspects of the operations of the home
health care business of the Company. The Executive shall
perform such other duties as shall be assigned to the
Executive by the Chief Operating Officer or such officer of
the Company as the board of Directors may from time-to-time
designate. The Executive shall devote her full business time,
attention and skills to the performance of her duties
hereunder and to the advancement of the business and interests
of the Company. During the time of this Agreement, the
Executive shall be required to base her business office at the
Lake Success Corporate office location. The Executive's base
business office shall not be changed without her prior
consent.
3. TERM. This Agreement shall be effective upon execution by the
Company and the Executive, and shall remain in effect until
February 28, 2002, unless terminated earlier pursuant to the
terms hereof.
4. COMPENSATION.
(a) Salary. The Executive shall be paid a salary of $204,000 per
annum during the term hereof, payable in weekly installments.
The Executive's salary will be reviewed by the Company on June
1, 2000 and June 1, 2001.
2
(b) Benefits. The Executive shall be eligible to receive and
participate in, in accordance with their terms, all health,
medical or other insurance benefits which the Company provides
or makes available to its employees.
(c) Expenses. The Company shall reimburse the Executive for all
reasonable and necessary expenses upon submission by the
Executive of receipts, accounts or such other documents
reasonably requested by the Company.
(d) Car Allowance. The Company will lease a Lexus ES300 for the
Executive.
(e) Vacation. The Executive shall be entitled to three (3) weeks
of paid vacation during each twelve (12) month period of
employment during the term.
(f) Nothing in this Agreement is intended to cause a reduction in
the Executive's benefits under the Company's policy or under
any benefit plan in which Executive is a participant at the
time of the execution of this Agreement.
5. TERMINATION: RIGHTS AND OBLIGATIONS UPON TERMINATION.
(a) If the Executive dies during the Term, then the Executive's
employment under this Agreement shall terminate. In such
event, the Executive's estate shall be entitled only to
compensation and expenses accrued and unpaid as at the date of
the Executive's death.
(b) If, as a result of the Executive's incapacity due to physical
or mental illness, whether or not job related, the Executive
is absent from her duties hereunder for 90 consecutive days,
or an aggregate of 120 days during the Term, the Executive's
employment hereunder and this Agreement shall terminate. In
such event, the Executive shall be entitled only to
compensation and expenses accrued and unpaid as at the date of
termination of the Executive's employment.
(c) The Company shall have the right to terminate the Executive's
employment under this Agreement for Cause. For purposes of the
Agreement, the Company shall have "Cause" to terminate the
Executive's employment if (i) the Executive assigns, pledges,
or otherwise disposes of her rights and obligations under this
Agreement, or attempts to do the same without the prior
written consent of the Company; or (ii) the Executive has been
insubordinate, has materially breached any of the terms or
conditions hereof, has engaged in willful misconduct or has
acted in bad faith; or (iii) the Executive has breached
Section 7 of this Agreement; or (iv) the Executive has
committed a felony or perpetrated a fraud against the Company.
If the Company terminates this Agreement for Cause, the
Company's obligations hereunder shall cease, except for the
Company's obligation to pay the
-2-
3
Executive the compensation and expenses accrued and unpaid as
of the date of termination in accordance with the provisions
hereof.
(d) In the event that at any time after a Change of Control (as
defined below) but prior to the end of twelve (12) months
after such Change of Control, the Executive is discharged for
any reason other than for Cause (as defined in (c) above) or
resigns for any reason (other than due to termination for
Cause), the Executive shall 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
------------------------- -------------------------------
1999 1996-1998
2000 1996-1999
2001 1996-2000
A "Change of Control" shall be deemed to occur when a person,
Company, partnership, association or entity (i) acquires a
majority of the outstanding voting securities of Tender Loving
Care Health Care Services, a Delaware corporation ("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 Company for
amounts owed to the Company by the Executive hereunder.
(f) The obligations of the Company and the Executive pursuant to
this Section 5 shall survive the termination of this
Agreement.
-3-
4
6. NOTICES. Any written notice permitted or required under this
Agreement shall be deemed sufficient when hand delivered or
posted by certified or registered mail, postage prepaid, and
addressed to:
if to Staff Builders, Inc.:
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention:Xxxx X. Xxxxx, COO
or
if to the Executive: Xxxxxx Xxxxxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Either party may, in accordance with the provisions of this Section,
give written notice of a change of address, in which event all such notices and
requests shall thereafter be given as above provided at such changed address.
7. CONFIDENTIALITY OBLIGATIONS; NON-COMPETITION BY EXECUTIVE.
(a) The Executive acknowledges that in the course of performing
her duties hereunder, she will be made privy to confidential
and proprietary information. The Executive covenants and
agrees that during the term of this Agreement and at any time
after the termination of this Agreement, she will not directly
or indirectly, for her own account or as an employee, officer,
director, partner, joint venturer, shareholder, investor, or
otherwise, disclose to others or use for her own benefit or
cause or induce others to do the same, any proprietary or
confidential information or trade secrets of the Company.
(b) The Executive agrees that, while this Agreement is in effect,
and for six(6) months following termination of employment, she
will not, within the United States (A) compete, directly or
indirectly for her own account or as an employee, officer,
director, partner, joint venturer, shareholder, investor, or
otherwise, with the business conducted by the Company; or (B)
while this Agreement is in effect and for one (1) year
following termination of employment directly or indirectly
solicit or recruit any employee of the Company to leave the
employ of the Company, or solicit any client or customer of
the Company to terminate or modify its business relationship
with the Company.
-4-
5
(c) The foregoing restrictions on the Executive set forth in this
Section 7 shall be operative for the benefit of the Company
and of any business owned or controlled by the Company, or any
successor or assign of any of the foregoing.
(d) Notwithstanding anything herein to the contrary, if the period
of time or the geographical area specified in this Section 7
should be determined to be unreasonable in a judicial
proceeding, then the period of time and territory of the
restriction shall be reduced so that this Agreement may be
enforced in such area and during such period of time as shall
be determined to be reasonable.
(e) The parties acknowledge that any breach of this Section 7 will
cause the Company irreparable harm for which there is no
adequate remedy at law, and as a result of this, the Company
shall be entitled to the issuance of an injunction,
restraining order or other equitable relief in favor of the
Company restraining Executive from committing or continuing
any such violation. Any right to obtain an injunction,
restraining order or other equitable relief hereunder shall
not be deemed a waiver of any right to assert any other remedy
the Company may have at law or equity.
(f) For purposes of this Section 7, the term "the Company" shall
refer to the Company and all of its parents, subsidiaries and
affiliated Companies.
8. JURISDICTION. The Executive and the Company consent to the
jurisdiction of the New York Supreme Court for a determination
of any disputes as to any matters whatsoever arising out of or
in any way connected with this Agreement and authorize the
service of process on the Company or Executive by registered
mail sent to either party at the address set forth in Section
6 of this Agreement.
9. HANDBOOK GROUP INSURANCE PROGRAM BOOKLET. The Executive
acknowledges receipt of the Company's Employee Handbook and
Group Insurance Program Booklet (together, the "Handbook").
The terms of the Handbook are incorporated herein by
reference.
10. BINDING EFFECT. This Agreement shall bind and inure to the
benefit of the Company, its successors and assigns and shall
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.
-5-
6
13. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject
matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations, and discussions,
whether oral or written. of the parties.
14. MODIFICATION, TERMINATION OR WAIVER. This Agreement may only
be amended or modified by a written instrument executed by the
parties hereto. The failure of any party at any time to
require performance of any provision of this Agreement shall
in no manner affect the right of such party at a later time to
enforce the same.
15. INDEMNIFICATION. The Company shall indemnify and hold
Executive harmless from any and all damages, costs, fees and
expenses, including but not limited to attorneys' fees, which
she may incur as a result of any claim against her arising out
of her performance of her duties under this Agreement provided
that she is not found to have committed intentional
misconduct.
IN WITNESS WHEREOF, the Company and the Executive have
executed this Employment Agreement as of the date first above written.
STAFF BUILDERS, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx, President and Chief
Operating Officer
/s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx
-6-
