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Exhibit 10.12
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Employment Agreement") is dated this 14th
day of February, 2001, between RES-CARE, INC., a Kentucky corporation (the
"Company"), and XXXX X. XXXX (the "Employee").
RECITALS:
WHEREAS, the Employee has been employed by the Company since May 1,
1997, and the services of the Employee, his managerial experience, and his
knowledge of the affairs of the Company are of great value to the Company;
WHEREAS, the Company and the Employee entered into an Employment
Agreement dated as of April 13, 1997, as amended by those certain letter
agreements dated August 4, 1997 and October 1, 1998 (collectively, the "Prior
Agreement");
WHEREAS, the initial term of the Prior Agreement expired on April 30,
2000 and the term of the Prior Agreement was extended for an additional year,
expiring on April 30, 2001;
WHEREAS, the Employee possesses substantial knowledge of the business
and affairs of the Company, its policies, methods, personnel and plans for the
future;
WHEREAS, the Board of Directors of the Company recognizes that the
Employee's contribution to the growth and success of the Company has been
substantial and wishes to offer an inducement to the Employee to remain in the
employ of the Company; and
WHEREAS, the Company and the Employee desire to supersede the Prior
Agreement, effective on the Commencement Date (as defined below), by executing
this Employment Agreement and agreeing to be bound by the terms thereof.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs the Employee, and
the Employee accepts such employment, upon the terms and conditions herein set
forth for an initial term commencing effective January 1, 2001 (the
"Commencement Date"), and ending on December 31, 2003, subject to earlier
termination only in accordance with the express provisions of this Employment
Agreement ("Initial Term"). This Employment Agreement shall be automatically
extended on a year-to-year basis (January 1 through December 31 of each
successive year), unless sooner terminated in accordance with the express
provisions of this Employment Agreement ("Additional Terms"), upon the
expiration of the Initial Term or any Additional Term, unless prior to the
commencement of a sixty (60) day period expiring at the end of such Initial Term
or any Additional Term, the Company or the Employee shall have given written
notice to the other stating that the term of this Employment Agreement shall not
be extended.
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For purposes of this Employment Agreement, the term "Term" shall mean the
Initial Term plus all Additional Terms.
2. DUTIES.
(a) EMPLOYMENT AS CHIEF DEVELOPMENT OFFICER. During the Term,
the Employee shall serve as the Chief Development Officer of the
Company. The Employee shall, subject to the supervision and control of
the Chairman, President and Chief Executive Officer of the Company
("Chairman") and the Board of Directors of the Company (the "Board")
(i) develop additional business and revenues for the Company and its
subsidiaries, including, as appropriate, identifying, locating,
analyzing, negotiating, and arranging for the acquisition of new
business of the Company and its subsidiaries through the acquisition of
equity interests in or the assets of existing enterprises, joint
venture arrangements, management agreements or consulting agreements;
(ii) negotiate for and oversee the disposition of assets, businesses
and/or operations of the Company and its subsidiaries; and (iii)
negotiate and/or provide oversight for all leasing of real estate for
the Company and its subsidiaries, whether as lessor or lessee. The
Employee shall also perform such other duties and exercise such powers
over and with regard to the business of the Company as may be
prescribed from time to time by the Chairman or the Board, including,
without limitation, serving as an officer or director of one or more
subsidiaries or affiliates of the Company, if elected to such
positions, without any additional salary or other compensation.
(b) TIME AND EFFORT. The Employee shall devote his best
efforts and all of his business time, energies and talents exclusively
to the business of the Company and to no other business during the Term
of this Employment Agreement; provided, however, that subject to the
restrictions in Section 7 hereof, the Employee may (i) invest his
personal assets in such form or manner as will not require his services
in the operation of the affairs of the entities in which such
investments are made and (ii) subject to satisfactory performance of
the duties described in Section 2(a) hereof, devote such time as may be
reasonably required for him to continue to maintain his current level
of participation in various civic and charitable activities.
(c) EMPLOYEE CERTIFICATION OF ELIGIBILITY. Not less frequently
than annually and upon the termination of the Employee's employment
hereunder for any reason other than Employee's death, the Employee
shall execute and deliver to the Chairman and/or any other authorized
officer designated by the Company a certificate (ResCare Annual
Employment Re-Certification Eligibility Form) confirming, to the best
of the Employee's knowledge, that the Employee remains eligible for
employment with the Company. This same certificate will certify that
the Employee has complied with applicable laws, regulations and Company
policies regarding the provision of services to clients and xxxxxxxx to
its paying agencies, Company policies on training, Drug and
Alcohol-Free Program, Prohibition of Harassment, Discrimination and
Violence in the Workplace. This statement shall state that the Employee
is not aware of any such violation by other employees, independent
contractors, vendors, or other individuals performing services for the
Company and its subsidiaries that they did not report as appropriate.
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3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. For the period immediately prior to the
Commencement Date, the Employee's Base Salary under the Prior Agreement
was an annual amount of $155,291.24 (the "Previous Salary"). Under the
Prior Agreement as modified by the verbal agreement of the parties,
effective January 1, 2001, the Employee would have been entitled to an
increase in the Previous Salary for the period May 1, 2000 through
December 31, 2000 using the methodology provided in the second literary
paragraph of Section 3 of the Prior Agreement, which increase is not
yet susceptible of calculation. Such Previous Salary, as it would have
been so increased, is hereinafter referred to as the "Initial Base
Salary". The Company shall pay to the Employee during the Term an
annual salary (the "Base Salary"), which initially shall be equal to
the Initial Base Salary. Commencing effective March 1, 2001, the Base
Salary shall be increased to $210,000. The Base Salary shall be due and
payable in substantially equal bi-weekly installments or in such other
installments as may be necessary to comport with the Company's normal
pay periods for all employees.
Provided that this Employment Agreement or Employee's
employment hereunder shall not have been terminated for any reason, the
Base Salary shall be increased, effective as of the first day of each
January, commencing January 1, 2002, by the greater of (x) five percent
(5%) or (y) the percentage by which the Consumer Price Index for all
Urban Consumers (CPI-U), All-Items, 1982-1984=100, as published by the
Bureau of Labor Statistics (the "CPI"), established for the month of
December immediately preceding the date on which the adjustment is to
be made exceeds the CPI published for the month of December of the
immediately preceding year. If the Bureau of Labor Statistics suspends
or terminates its publication of the CPI, the parties agree that a
reasonably comparable price index shall be substituted for the CPI.
(b) INCENTIVE PROGRAM. During the Term, the Employee shall be
eligible for incentive compensation in accordance with a written
incentive program mutually established by the Chairman and the Employee
on an annual basis (the "Incentive Program"). The Incentive Program
shall provide that sixty-five percent (65%) of the maximum incentive
that may be earned by the Employee shall be based on compliance goals
mutually established by the Chairman and the Employee and thirty-five
percent (35%) of the maximum incentive that may be earned by the
Employee shall be based on the financial performance of the Company and
its subsidiaries as a whole. All incentive payments under the Incentive
Program shall be determined quarterly, and shall be calculated by
reference to the incentive percentage earned by the Employee multiplied
by the Base Salary actually paid to the Employee for the calendar
quarter for which the incentive is determined. The maximum percentage
of the Employee's Base Salary that the Employee may earn under the
Incentive Program shall be forty percent (40%) of the Base Salary
actually paid to the Employee for the calendar quarter for which the
incentive is determined. Any quarterly incentive earned by the Employee
for any calendar quarter shall be paid by the Company to the Employee
not later than sixty (60) days after the end of such calendar quarter.
Any amounts earned by the Employee under the Incentive Program shall be
hereinafter referred to as the "Performance Incentive."
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(c) PARTICIPATION IN BENEFIT PLANS. During the Term, Employee
shall be entitled to participate in all employee benefit plans and
programs (including but not limited to vacation, sick and other time
off policies, retirement and profit sharing plans, health insurance,
etc.) provided by the Company under which the Employee is eligible in
accordance with the terms of such plans and programs. The Company
reserves the right to amend, modify or terminate in their entirety any
of such programs and plans.
(d) STOCK OPTION GRANT. As an inducement for the execution of
this Employment Agreement by the Employee, on March 8, 2001 (the "Grant
Date"), the Employee shall be granted options to purchase 35,000 shares
of Company common stock. Such stock options shall be granted pursuant
to and, to the extent not expressly inconsistent herewith, governed by
the Company stock option plan that is applicable to its managerial
employees (the "Stock Plan"). Twenty percent (20%) of such stock
options shall vest and be exercisable on the Grant Date. Provided the
Employee shall continue to be employed hereunder, twenty percent (20%)
of such stock options shall vest and be exercisable on each of the next
four (4) anniversaries of the Grant Date (with such number of shares to
be adjusted in accordance with the terms of the Stock Plan for stock
splits, stock dividends, recapitalizations and the like). Any stock
options that shall not be vested at the effective date of termination
of the Employee's employment hereunder shall expire and any vested
options shall expire in accordance with the terms of the Stock Plan.
Such options shall have an exercise price based upon the closing sale
price of Company common stock as reported on the Nasdaq National Market
on the Grant Date.
(e) OUT-OF-POCKET EXPENSES. The Company shall promptly pay the
ordinary, necessary and reasonable expenses incurred by the Employee in
the performance of the Employee's duties hereunder (or if such expenses
are paid directly by the Employee shall promptly reimburse him for such
payment), consistent with the reimbursement policies adopted by the
Company from time to time and subject to the prior written approval by
the Chairman.
(f) EXISTING LOAN. On December 1, 1997, the Company loaned the
Employee the principal sum of $15,000 (the "Loan"), and the Employee
executed and delivered to the Company a Term Promissory Note (the
"Note"), the original maturity date of which was April 30, 2000. The
Company previously agreed to extend the original maturity date of the
Note and the Employee's obligation to pay the outstanding principal
balance and all accrued and unpaid interest under the Note to the
earlier of April 30, 2001, or the date of termination under the Prior
Agreement. The maturity date of the Note and the Employee's obligation
to pay the outstanding principal balance and all accrued and unpaid
interest under the Note is hereby extended to the earlier of May 1,
2003, or the Date of Termination under this Employment Agreement. On
May 1, 2001, provided Employee then remains a full-time employee of the
Company and has satisfied his tax withholding obligations in paragraph
(g) of this Section 3, one-third (1/3) of the then outstanding
principal balance of the Note and one-third (1/3) of the then accrued
and unpaid interest under the Note shall be reduced and forgiven by the
Company. On May 1, 2002, provided Employee then remains a full-time
employee of the Company and has satisfied his tax withholding
obligations in paragraph (g) of this Section 3, one-half (1/2) of the
then outstanding principal balance of the Note and one-half (1/2) of
the then accrued and unpaid interest under the Note shall be reduced
and forgiven by the
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Company. On May 1, 2003, provided Employee then remains a full-time
employee of the Company and has satisfied his tax withholding
obligations in paragraph (g) of this Section 3, all of the then
outstanding principal balance of the Note and all of the then accrued
and unpaid interest under the Note shall be reduced and forgiven by the
Company. Any reductions and forgiveness of the Loan shall be deemed a
compensation bonus to the Employee under this Employment Agreement.
(g) WITHHOLDING OF TAXES; INCOME TAX TREATMENT. If, upon the
payment of any compensation or benefit to the Employee under this
Employment Agreement (including, without limitation, in connection with
the exercise of any option and the reduction and forgiveness of any
portion of the Loan), the Company determines in its discretion that it
is required to withhold or provide for the payment in any manner of
taxes, including but not limited to, federal income or social security
taxes, state income taxes or local income taxes, the Employee agrees
that the Company may satisfy such requirement by:
(i) withholding an amount necessary to satisfy such
withholding requirement from the Employee's compensation or
benefit; or
(ii) conditioning the payment or transfer of such
compensation or benefit upon the Employee's payment to the
Company of an amount sufficient to satisfy such withholding
requirement.
The Employee agrees that he will treat all of the amounts payable
pursuant to this Employment Agreement as compensation for income tax
purposes.
4. TERMINATION. The Employee's employment hereunder may be terminated
under this Employment Agreement as follows, subject to the Employee's rights
pursuant to Section 5 hereof:
(a) DEATH. The Employee's employment hereunder shall terminate
upon his death.
(b) DISABILITY. The Employee's employment shall terminate
hereunder at the earlier of (i) immediately upon the Company's
determination (conveyed by a Notice of Termination (as defined in
paragraph (f) of this Section 4)) that the Employee is permanently
disabled, and (ii) the Employee's absence from his duties hereunder for
180 days. "Permanent disability" for purposes of this Employment
Agreement shall mean the onset of a physical or mental disability which
prevents the Employee from performing the essential functions of the
Employee's duties hereunder, which is expected to continue for 180 days
or more, subject to any reasonable accommodation required by state
and/or federal disability anti-discrimination laws, including, but not
limited to, the Americans With Disabilities Act of 1990, as amended.
(c) CAUSE. The Company may immediately terminate the
Employee's employment hereunder for Cause by delivering to the Employee
a Notice of Termination so indicating. For purposes of this Employment
Agreement, the Company shall have "Cause" to terminate the Employee's
employment because of the Employee's personal
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dishonesty, intentional misconduct, breach of fiduciary duty involving
personal profit, conviction of, or plea of nolo contendere to, any law,
rule or regulation (other than traffic violations or similar offenses)
or breach of any provision of this Employment Agreement.
(d) WITHOUT CAUSE. The Company shall have the right to
terminate the Employee's employment under this Employment Agreement at
any time without Cause (as defined in paragraph (c) of this Section 4)
by delivery of a Notice of Termination specifying a date of termination
at least thirty (30) days following delivery of such notice.
(e) VOLUNTARY TERMINATION. By not less than thirty (30) days
prior written notice to the Chairman, Employee may voluntarily
terminate his employment hereunder.
(f) NOTICE OF TERMINATION. Any termination of the Employee's
employment by the Company during the Term pursuant to paragraphs (b),
(c) or (d) of this Section 4 shall be communicated by a Notice of
Termination to the Employee. For purposes of this Employment Agreement,
a "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Employment
Agreement relied upon and in the case of any termination for Cause
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee's
employment.
(g) DATE OF TERMINATION. The "Date of Termination" shall, for
purposes of this Employment Agreement, mean: (i) if the Employee's
employment is terminated by his death, the date of his death; (ii) if
the Employee's employment is terminated on account of disability
pursuant to Section 4(b) above, thirty (30) days after Notice of
Termination is given (provided that the Employee shall not, during such
30-day period, have returned to the performance of his duties on a
full-time basis), (iii) if the Employee's employment is terminated by
the Company for Cause pursuant to Section 4(c) above, the date
specified in the Notice of Termination, (iv) if the Employee's
employment is terminated by the Company without Cause, pursuant to
Section 4(d) above, the date specified in the Notice of Termination,
(v) if the Employee's employment is terminated voluntarily pursuant to
Section 4(e) above, the date specified in the written notice delivered
by the Employee to the Company as provided in Section 4(e) above, and
(vi) if the Employee's employment is terminated by reason of an
election by either party not to extend the Term, the last day of the
then effective Term.
5. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) DEATH. If the Employee's employment is terminated by
reason of his death during the Term, the Employee shall continue to
receive installments of his then current Base Salary until the date of
his death, shall receive any earned but unpaid Performance Incentive
for any calendar quarter ending prior to the date of his death and the
entire remaining principal balance and all accrued and unpaid interest
on the Note shall be forgiven by the Company and deemed paid.
(b) DISABILITY. If the Employee's employment is terminated by
reason of his disability during the Term, the Employee shall continue
to receive installments of his then current Base Salary while actively
at work and until the earlier of (i) the date of
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termination in accordance with Section 4(b) of this Employment
Agreement or (ii) the date that short or long-term disability payments
to the Employee commence under any plan or program then provided and
funded by the Company. If the Employee's installments of Base Salary
cease by reason of clause (ii) of the preceding sentence but the
benefits payable under any such disability plan or program do not
provide 100% replacement of the Employee's installments of Base Salary
during such period, the Employee shall be paid at regular payroll
intervals until the provisions of clause (i) of the preceding sentence
becomes effective, an amount equal to the difference between the
periodic installments of his then current Base Salary that would have
otherwise been payable and the disability benefit paid from such
disability plan or program. In the event of any such termination, the
Employee shall also receive any earned but unpaid Performance Incentive
for any calendar quarter prior to the Date of Termination and the
entire remaining principal balance and all accrued and unpaid interest
on the Note shall be forgiven by the Company and deemed paid. Upon
termination due to death prior to a termination as specified in the
preceding provisions of this paragraph (b), the payment provisions of
this paragraph (b) shall no longer apply and Section 5(a) above shall
apply.
(c) CAUSE. If the Employee's employment is terminated for
Cause, the Employee shall continue to receive installments of his then
current Base Salary only through the Date of Termination and the
Employee shall not be entitled to receive any Performance Incentive
(other than any earned but unpaid Performance Incentive for any prior
calendar quarter), the then remaining principal balance and all accrued
and unpaid interest under the Note shall be immediately due and payable
in full by Employee and Employee shall not be eligible for any
severance payment of any nature.
(d) WITHOUT CAUSE. If the Employee's employment is terminated
without Cause, the Employee shall continue to receive installments of
his then current Base Salary until the Date of Termination and for one
(1) year thereafter, shall also be entitled to receive any earned but
unpaid Performance Incentive for any calendar quarter ending prior to
the Date of Termination and the entire remaining principal balance and
all accrued and unpaid interest on the Note shall be forgiven by the
Company and deemed paid.
(e) EXPIRATION OF TERM. If the Employee's employment shall be
terminated by reason of expiration of the Term by reason of Employee's
election not to extend the Term, the Employee shall continue to receive
installments of his then current Base Salary until the Date of
Termination and shall also be entitled to receive any earned but unpaid
Performance Incentive for any calendar quarter ending prior to the Date
of Termination. If the Employee's employment shall be terminated by
reason of expiration of the Term by reason of the Company's election
not to extend the Term, the Employee shall continue to receive
installments of his then current Base Salary until the Date of
Termination and for one (1) year thereafter and shall also be entitled
to receive any earned but unpaid Performance Incentive for any calendar
quarter ending prior to the Date of Termination.
(f) VOLUNTARY TERMINATION. If the Employee's employment shall
be terminated pursuant to Section 4(e) hereof, the Employee shall
continue to receive installments of his then current Base Salary until
the Date of Termination and the Employee shall not be entitled to
receive any Performance Incentive (other than any
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earned but unpaid Performance Incentive for any calendar quarter ending
prior to the Date of Termination), the then remaining principal balance
and all accrued and unpaid interest under the Note shall be immediately
due and payable in full by Employee and Employee shall not be entitled
to any severance payment of any nature.
(g) NO FURTHER OBLIGATIONS AFTER PAYMENT. After all payments,
if any, have been made to the Employee pursuant to the applicable
provisions of paragraphs (a) through (f) of this Section 5, the Company
shall have no further obligations to the Employee under this Employment
Agreement other than the provision of any employee benefit plan
required to be continued under applicable law or by its terms.
6. DUTIES UPON TERMINATION. Upon the termination of Employee's
employment hereunder for any reason whatsoever (including but not limited to the
failure of the parties hereto to agree to the extension of this Employment
Agreement pursuant to Section 1 hereof), Employee shall promptly (a) comply with
his obligation to deliver an executed exit interview document as provided in
accordance with Company policy, and (b) return to the Company any property of
the Company or its subsidiaries then in Employee's possession or control,
including without limitation, any Confidential Information (as defined in
Section 7(d)(iii) hereof) and whether or not constituting Confidential
Information, any technical data, performance information and reports, sales or
marketing plans, documents or other records, and any manuals, drawings, tape
recordings, computer programs, discs, and any other physical representations of
any other information relating to the Company, its subsidiaries or affiliates or
to the Business (as defined in Section 7(d)(iv) hereof) of the Company. Employee
hereby acknowledges that any and all of such documents, items, physical
representations and information are and shall remain at all times the exclusive
property of the Company.
7. RESTRICTIVE COVENANTS.
(a) ACKNOWLEDGMENTS. Employee acknowledges that (i) his
services hereunder are of a special, unique and extraordinary character
and that his position with the Company places him in a position of
confidence and trust with the operations of the Company, its
subsidiaries and affiliates (collectively, the "Res-Care Companies")
and allows him access to Confidential Information, (ii) the Company has
provided Employee with a unique opportunity as the Company's Chief
Development Officer, (iii) the nature and periods of the restrictions
imposed by the covenants contained in this Section 7 are fair,
reasonable and necessary to protect and preserve for the Company the
benefits of Employee's employment hereunder, (iv) the Res-Care
Companies would sustain great and irreparable loss and damage if
Employee were to breach any of such covenants, (v) the Res-Care
Companies conduct and are aggressively pursuing the conduct of their
business actively in and throughout the entire Territory (as defined in
paragraph (d)(ii) of this Section 7), and (vi) the Territory is
reasonably sized because the current Business of the Res-Care Companies
is conducted throughout such geographical area, the Res-Care Companies
are aggressively pursuing expansion and new operations throughout such
geographic area and the Res-Care Companies require the entire Territory
for profitable operations.
(b) CONFIDENTIALITY AND NON-DISPARAGEMENT COVENANTS. Having
acknowledged the foregoing, Employee covenants that without limitation
as to time, (i) commencing on
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the Commencement Date, he will not directly or indirectly disclose or
use or otherwise exploit for his own benefit, or the benefit of any
other Person (as defined in paragraph (d)(v) of this Section 7), except
as may be necessary in the performance of his duties hereunder, any
Confidential Information, and (ii) commencing on the Date of
Termination, he will not disparage or comment negatively about any of
the Res-Care Companies, or their respective officers, directors,
employees, policies or practices, and he will not discourage anyone
from doing business with any of the Res-Care Companies and will not
encourage anyone to withdraw their employment with any of the Res-Care
Companies.
(c) COVENANTS. Having acknowledged the statements in Section
7(a) hereof, Employee covenants and agrees with the Res-Care Companies
that he will not, directly or indirectly, from the Commencement Date
until the Date of Termination, and for a period of eighteen (18) months
thereafter, directly or indirectly (i) offer employment to, hire,
solicit, divert or appropriate to himself or any other Person, any
business or services (similar in nature to the Business) of any person
who was an employee or an agent of any of the Res-Care Companies at any
time during the last twelve (12) months of Employee's employment
hereunder; or (ii) own, manage, operate, join, control, assist,
participate in or be connected with, directly or indirectly, as an
officer, director, shareholder, partner, proprietor, employee, agent,
consultant, independent contractor or otherwise, any Person which is,
at the time, directly or indirectly, engaged in the Business of the
Res-Care Companies within the Territory. The Employee further agrees
that from the Commencement Date until the Date of Termination, he will
not undertake any planning for or organization of any business activity
that would be competitive with the Business.
(d) DEFINITIONS. For purposes of this Employment Agreement:
(i) For purposes of this Section 7, "termination of
Employee's employment" shall include any termination pursuant
to paragraphs (b), (c), (d) and (e) of Section 4 hereof, the
termination of such Employee's employment by reason of the
failure of the parties hereto to agree to the extension of
this Agreement pursuant to Section 1 hereof or the voluntary
termination of Employee's employment hereunder.
(ii) The "Territory" shall mean the forty-eight (48)
contiguous states of the United States, the United States
Virgin Islands, Puerto Rico and all of the Provinces of
Canada.
(iii) "Confidential Information" shall mean any
business information relating to the Res-Care Companies or to
the Business (whether or not constituting a trade secret),
which has been or is treated by any of the Res-Care Companies
as proprietary and confidential and which is not generally
known or ascertainable through proper means. Without limiting
the generality of the foregoing, so long as such information
is not generally known or ascertainable by proper means and is
treated by the Res-Care Companies as proprietary and
confidential, Confidential Information shall include the
following information regarding any of the Res-Care Companies:
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(1) any patent, patent application,
copyright, trademark, trade name,
service xxxx, service name,
"know-how" or trade secrets;
(2) customer lists and information
relating to (i) any client of any of
the Res-Care Companies or (ii) any
client of the operations of any
other Person for which operations
any of the Res-Care Companies
provides management services;
(3) supplier lists, pricing policies,
consulting contracts and competitive
bid information;
(4) records, operational methods and
Company policies and procedures,
including manuals and forms;
(5) marketing data, plans and
strategies;
(6) business acquisition, development,
expansion or capital investment plan
or activities;
(7) software and any other confidential
technical programs;
(8) personnel information, employee
payroll and benefits data;
(9) accounts receivable and accounts
payable;
(10) other financial information,
including financial statements,
budgets, projections, earnings and
any unpublished financial
information; and
(11) correspondence and communications
with outside parties.
(iv) The "Business" of the Res-Care Companies shall
mean the business of providing youth treatment or services,
services to persons with mental retardation and other
developmental disabilities, including but not limited to
persons who have been dually diagnosed, services to persons
with acquired brain injuries, training services, or providing
management and/or consulting services to third parties
relating to the foregoing.
(v) The term "Person" shall mean an individual, a
partnership, an association, a corporation, a trust, an
unincorporated organization, or any other business entity or
enterprise.
(e) INJUNCTIVE RELIEF, INVALIDITY OF ANY PROVISION. Employee
acknowledges that his breach of any covenant contained in this Section
7 will result in irreparable injury to the Res-Care Companies and that
the remedy at law of such parties for such a breach will be inadequate.
Accordingly, Employee agrees and consents that each of the Res-Care
Companies in addition to all other remedies available to them at law
and in equity,
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shall be entitled to seek both preliminary and permanent injunctions
to prevent and/or halt a breach or threatened breach by Employee of
any covenant contained in this Section 7. If any provision of this
Section 7 is invalid in part or in whole, it shall be deemed to have
been amended, whether as to time, area covered, or otherwise, as and
to the extent required for its validity under applicable law and, as
so amended, shall be enforceable. The parties further agree to
execute all documents necessary to evidence such amendment.
(f) ADVICE TO FUTURE EMPLOYERS. If Employee, in the future,
seeks or is offered employment by any other Person, he shall provide a
copy of this Section 7 to the prospective employer prior to accepting
employment with that prospective employer.
8. ENTIRE AGREEMENT; MODIFICATION; WAIVER. This Employment Agreement
constitutes the entire agreement between the parties pertaining to the subject
matter contained in them and supersedes all prior and contemporaneous
agreements, representations, and understandings of the parties, including but
not limited to the Prior Agreement. No supplement, modification, or amendment of
this Employment Agreement shall be binding unless executed in writing by all
parties hereto (other than by reason of the prospective modification of the
Incentive Program by the Company or as provided in the next to last sentence of
Section 7(e) hereof). No waiver of any of the provisions of this Employment
Agreement will be deemed, or will constitute, a waiver of any other provision,
whether or not similar, nor will any waiver constitute a continuing waiver. No
waiver will be binding unless executed in writing by the party making the
waiver.
9. SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Employment Agreement shall
be binding on, and inure to the benefit of, the parties hereto and their
respective heirs, executors, legal representatives, successors and assigns;
PROVIDED, HOWEVER, that this Employment Agreement is intended to be personal to
the Employee and the rights and obligations of the Employee hereunder may not be
assigned or transferred by him.
10. NOTICES. All notices, requests, demands and other communications
required or permitted to be given or made under this Employment Agreement, or
any other agreement executed in connection therewith, shall be in writing and
shall be deemed to have been given on the date of delivery personally or upon
deposit in the United States mail postage prepaid by registered or certified
mail, return receipt requested, to the appropriate party or parties at the
following addresses (or at such other address as shall hereafter be designated
by any party to the other parties by notice given in accordance with this
Section):
TO THE COMPANY:
ResCare, Inc.
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx,
Chairman, President and Chief Executive Officer
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TO THE EMPLOYEE:
---------------
Xxxx X. Xxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
11. EXECUTION IN COUNTERPARTS. This Employment Agreement may be
executed in multiple counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same document.
12. FURTHER ASSURANCES. The parties each hereby agree to execute and
deliver all of the agreements, documents and instruments required to be executed
and delivered by them in this Employment Agreement and to execute and deliver
such additional instruments and documents and to take such additional actions as
may reasonably be required from time to time in order to effectuate the
transactions contemplated by this Employment Agreement.
13. SEVERABILITY OF PROVISIONS. The invalidity or unenforceability of
any particular provision of this Employment Agreement shall not affect the other
provisions hereof and this Employment Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were omitted.
14. GOVERNING LAW; JURISDICTION; VENUE. This Employment Agreement is
executed and delivered in, and shall be governed by, enforced and interpreted in
accordance with the laws of, the Commonwealth of Kentucky. The parties hereto
agree that the federal or state courts located in Kentucky shall have the
exclusive jurisdiction with regard to any litigation relating to this Employment
Agreement and that venue shall be proper only in Jefferson County, Kentucky, the
location of the principal office of the Company.
15. TENSE; CAPTIONS. In construing this Employment Agreement, whenever
appropriate, the singular tense shall also be deemed to mean the plural, and
vice versa, and the captions contained in this Employment Agreement shall be
ignored.
16. SURVIVAL. The provisions of Sections 5, 6 and 7 hereof shall
survive the termination, for any reason, of this Employment Agreement, in
accordance with their terms.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the day and year set forth above.
RES-CARE, INC.
By: --------------------------------
Xxxxxx X. Xxxxx
Chairman, President and Chief
Executive Officer
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Xxxx X. Xxxx
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