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EXHIBIT 10.52
EMPLOYMENT AGREEMENT
AGREEMENT between Coram Healthcare Corporation, a Delaware
corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Executive"), made as of
November 30, 1999, the date upon which Executive has executed and delivered this
Agreement to the Company (the "Effective Date").
In consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and
Executive accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the date hereof and ending
as provided in paragraph 4 hereof (the "Employment Period").
2. Position and Duties. During the Employment Period,
Executive shall serve as the Executive Vice President of the Company and all of
its wholly-owned subsidiaries, and Executive shall have the normal duties,
responsibilities and authority of the Executive Vice President and intends to do
whatever is professionally necessary to turn the Company around and the Company
recognizes that Executive will have other business interests and may serve as an
officer or consultant to other businesses.
3. Base Salary and Benefits.
(a) Executive's base salary (the "Base Salary") shall
initially be $310,000 per annum, payable in cash and in accordance with the
Company's general payroll practices. The Base Salary shall be reviewed annually
by the Board of Directors of the Company (the "Board") and increased (but not
decreased) based upon Executive's performance.
(b) In addition to the Base Salary, Executive shall be
entitled to a performance bonus (the "Bonus") payable within 90 days of the end
of each fiscal year based upon the Company's operating results, as follows: if
earnings before interest, taxes, depreciation and amortization (EBITDA) of the
Company, as measured by the audited financial statements of the Company in any
one year equals or exceeds 100% of the target amounts (the "EBITDA Targets") to
be determined by the Compensation Committee of the Board of Directors of the
Company (consisting of at least two outside directors who will comprise a
majority of such Committee) and Executive in good faith, beginning in fiscal
year 2000, Executive shall be entitled to a bonus for such year (the "Bonus")
equal to the percentage set forth on Schedule A hereto of the Base Salary in
effect on the last day of the Company's fiscal year for which such Bonus is
payable. Any Bonus earned by Executive hereunder shall be payable by the Company
in cash.
(c) Executive shall be granted options as of the Effective
Date to purchase 500,000 shares of Common Stock of the Company (the "Option
Shares") at a price equal to the closing price of the Common Stock on the New
York Stock Exchange on the December 17, 1999. The Option Shares shall be granted
to Executive under the Company's 1994 Stock Option/Stock Issuance Plan (the
"Plan"). Each of the options (the "Options") shall vest and become exercisable
by Executive as to 33-1/3% of the Option Shares covered thereby on each of the
first, second and third anniversaries of the Effective Date, if Executive
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is then employed by the Company, and will vest as to 100% of the Option Shares
upon: (i) a Change in Control (as defined below); (ii) any termination by the
Company of this Agreement other than a termination by the Company for Cause (as
defined below); (iii) any termination by Executive pursuant to paragraph
4(a)(ii) hereof; or (iv) if the Employment Period is terminated as a result of
Executive's death or permanent Disability (as defined below).
For purposes of this Agreement, a Change in Control of the
Company shall be deemed to have occurred if: (i) any "person" (as such term is
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than a trustee or other fiduciary holding securities of
the Company under an employee benefit plan of the Company or the Senior
Subordinated Noteholders pursuant to the Securities Exchange Agreement dated May
6, 1998, or a group composed principally thereof, becomes the "beneficial owner"
(as defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more of (A) the
outstanding shares of Common Stock of the Company or (B) the combined voting
power of the Company's then-outstanding securities entitled to vote generally in
the election of directors; (ii) during any period of not more than two
consecutive years, individuals who at the beginning of such period constitute
the Board, and any new director (other than a director designated by a person
who has entered into an agreement with the Company to effect a transaction
described in paragraph (i) or (iii) of this paragraph 3(c)) whose election by
the Board or nomination for election by the Company's shareholders was approved
by a vote of at least two-thirds of the directors still in office who were
either in office at the beginning of such period or whose election or nomination
for election was previously so approved, cease for any reason to constitute a
majority of the Board; or (iii) the shareholders of the Company approve a merger
or consolidation which would result in the holders of voting securities of the
Company outstanding immediately prior thereto failing to continue to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation; or (iv) or the shareholders 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.
(d) In addition to the Base Salary and any bonuses payable to
Executive pursuant to this paragraph, Executive shall be entitled to the
following benefits during the Employment Period, unless otherwise increased by
the Board:
(i) Health insurance, dental insurance and disability
insurance as such coverage is made generally available to the senior
executives of the Company.
(ii) four weeks paid vacation each year (any unused
vacation will be paid out at the Base Salary rate on December 31 of
each year during the Employment Period and upon termination of this
Agreement);
(iii) participation in any group life insurance plan,
or other insurance plan, medical expense plan or other benefit
arrangement maintained by the Company for its senior executives
generally and, if applicable, their family members; and
(iv) a car allowance of $1,000 per month.
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(e) The Company shall provide Executive corporate housing up
to $2,500 in Denver, Colorado for all or such portion of the Employment Period
as is requested by Executive.
(f) The Company shall also pay to Executive an amount equal to
the "Grossed-up Excess Tax Liability." The term "Grossed-up Excess Tax
Liability" means an amount which, after Executive's payment of federal and state
income tax liabilities arising on the receipt of the Grossed-up Excess Tax
Liability payment, shall equal the amount of the "Benefits Tax Liability." The
term "Benefits Tax Liability" shall mean the sum of federal and state income tax
liability which is payable by Executive upon the receipt of the benefits
provided for in Section 3(d), (e) and (i) hereof.
(g) The Company shall reimburse Executive for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
(h) In addition to the Base Salary and any bonuses payable to
Executive hereunder, Executive shall also be entitled to receive an acquisition
bonus ("Acquisition Bonus") equal to 2.99 times the annual Base Salary and
"Target Bonus" (as defined on Schedule A hereof) payable to Executive hereunder
at the time when the Acquisition Bonus becomes payable. The Acquisition Bonus
shall be paid concurrently with the consummation of a merger or consolidation
which results in the holders of voting securities of the Company outstanding
immediately prior thereto failing to continue to represent (either by remaining
outstanding, or by being converted into voting securities of the surviving
entity) at least 50% of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation, or the sale or disposition by the Company of all or
substantially all of the Company's assets, or any transaction having similar
effect, other than a liquidation of the Company (an "Acquisition").
(i) The company shall pay for Executive's annual
federal and state tax preparation costs up to a maximum of $5,000 per
calendar year.
4. Term.
(a) The Employment Period shall end on November 29, 2002,
provided that: (i) the Employment Period shall terminate prior to such date upon
Executive's resignation, death or permanent disability (defined as the
expiration of a continuous period of 180 days during which Executive is unable
to perform his assigned duties due to physical or mental incapacity); (ii) the
Employment Period may be terminated by Executive at any time prior to such date
if the Company fails to comply with any material provision of this Agreement,
which failure has not been cured within 10 business days after notice of such
noncompliance has been given by Executive to the Company; and (iii) the
Employment Period may be terminated by the Company at any time prior to such
date for Cause.
(b) If the Employment Period is terminated by the Company for
Cause or is terminated by Executive's resignation, Executive shall be entitled
to receive all amounts due to him through the date of termination.
(c) If the Employment Period is terminated as a result of
Executive's death or permanent Disability, the Company shall pay any amounts due
to Executive through the date of termination and a Bonus (payable as set forth
in paragraph 3(b)) in an amount
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equal to the Bonus which would have otherwise been payable to Executive pursuant
to paragraph 3(b) with respect to the fiscal year in which such termination
occurs.
(d) If the Employment Period is terminated by the Company
other than for Cause or by Executive pursuant to paragraphs 4(a)(ii) above,
Executive shall be entitled to receive (i) his Base Salary through the third
anniversary of the Effective Date (or, if longer, for a period of 24 months
after the date of termination), payable in accordance with the Company's general
payroll practices, and (ii) the then applicable Target Bonus which shall be
payable within ninety days after the end of each of the Company's fiscal years
ending thereafter through 2002. The Company shall also continue coverage for
Employee under the Company's life insurance, medical, health, disability and
similar welfare benefit plans and the whole life insurance plan described in
paragraph 3(d)(i) through the third anniversary of the Effective Date (or, if
longer, for a period of 24 months after the date of termination).
(e) Except as otherwise set forth above, all of Executive's
rights to fringe benefits and bonuses hereunder (if any) accruing after the
termination of the Employment Period shall cease upon such termination.
(f) For purposes of this Agreement, "Cause" shall mean (i) the
continuing willful failure or refusal by Executive to perform substantial and
material duties hereunder (other than any such failure resulting from
Executive's incapacity due to physical or mental illness), which has not ceased
within 10 business days after written demand for substantial performance is
delivered to Executive by the Company, which demand identifies the manner in
which the Company believes that Executive has not performed such duties and the
steps required to cure such failure to perform; (ii) Executive shall
intentionally and willfully engage in misconduct toward the Company which is
materially injurious to the Company and its Subsidiaries, monetarily or
otherwise (including, but not limited to, conduct in violation of paragraph 6 or
7 hereof), or (iii) the conviction of Executive of or the entering of a plea of
nolo contendere by Executive with respect to, a felony. Notwithstanding the
foregoing, Executive's Employment hereunder shall not be deemed to be terminated
for Cause unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by an affirmative vote of not less than a majority
of the entire membership of the Board at a meeting of the Board (after written
notice to Executive and a reasonable opportunity for Executive, together with
Executive's counsel, to be heard before the Board), finding that in the good
faith opinion of the Board, Executive should be terminated for Cause. Cause
shall not be deemed to include the performance of duties for other companies or
businesses that do not compete with the Company or unreasonably interfere with
Executive's turnaround responsibilities for the Company.
(g) In the event of any dispute regarding the existence of
Executive's Disability hereunder, the matter will be resolved by the
determination of a majority of three physicians qualified to practice medicine
in Colorado, one to be selected by each of Executive and the Board and the third
to be selected by the two designated physicians. For this purpose, Executive
will submit to appropriate medical examinations.
(h) Executive shall not be required to mitigate the amount of
any payment provided for in this paragraph 4 by seeking other employment or
otherwise, and the amount of any payment or benefit provided for in this
paragraph 4 shall not be reduced by any compensation earned by Executive as a
result of employment by another employer or by retirement benefits.
5. Confidential Information. The Executive acknowledges that
the information, observations and data obtained by him while employed by the
Company
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concerning the business or affairs of the Company or any Subsidiary
("Confidential Information") are the property of the Company or such Subsidiary.
Therefore, Executive agrees that he shall not disclose to any unauthorized
person or use for his own account any Confidential Information without the prior
written consent of the Board, unless and to the extent required by law, rule or
regulation or pursuant to any administrative or court order. The term
"Confidential Information" shall not include (i) information which is generally
available to the public or those in the Company's industry as of the date of
execution of this Agreement or which later becomes generally available to the
public or those in the Company's industry other than as a result of Executive's
prohibited disclosure; (ii) information which comes to Executive from a bona
fide third party source so long as such source was not, to Executive's
knowledge, prohibited from providing such information to Executive by any
contractual, legal, fiduciary or other obligation; and (iii) information which
was known to Executive before such information was obtained from the Company.
Executive shall deliver to the Company at the termination of the Employment
Period, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes and software and other documents and
data (and copies thereof) relating to the Confidential Information or the
business of the Company or any Subsidiary which he may then possess or have
under his control.
6. Non-Compete, Non-Solicitation.
(a) Executive acknowledges that in the course of his
employment with the Company he will become familiar with the Company's trade
secrets and with other confidential information concerning the Company and its
predecessors and that his services will be of special, unique and extraordinary
value to the Company. Therefore, Executive agrees that (i) during the period in
which Executive is receiving compensation from the Company pursuant to paragraph
4 hereof, or (ii) if the Employment Period is terminated as provided in
paragraph 4(b), for a period of one year following such termination (the
"Noncompete Period"), he shall not directly or indirectly own, manage, control,
participate in, consult with, render services to, or in any manner engage in any
business competing with any business of the Company or its Subsidiaries, as such
businesses exist or are in process on the date of the termination of Executive's
employment, within any geographical area in which the Company or its
Subsidiaries engage or plan to engage in such businesses. Geographic areas in
which the Company and/or its Subsidiaries plans to operate any businesses or in
which any businesses of the Company exist or are in process will be identified
in writing upon request of Executive within thirty days of the date of
termination of the Employment Period. Nothing herein shall prohibit Executive
from being a passive owner of not more than 5% of the outstanding stock of any
class of a corporation which is publicly traded, so long as Executive has no
active participation in the business of such corporation.
(b) During the Noncompete Period, Executive shall not directly
or indirectly through another entity (i) induce or attempt to induce any
employee of the Company or any Subsidiary to leave the employ of the Company or
such Subsidiary, or in any way interfere with the relationship between the
Company or any Subsidiary and any employee thereof, (ii) solicit any person who
was an employee of the Company or any Subsidiary at any time within one year
prior to termination of the Employment Period, or (iii) induce or attempt to
induce any customer, supplier, licensee or other business relation of the
Company or any Subsidiary to cease doing business with the Company or such
Subsidiary, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any
Subsidiary.
(c) If, at the time of enforcement of this paragraph 6, a
court shall hold that the duration, scope or area restrictions stated herein are
unreasonable under
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circumstances then existing, the parties agree that the maximum duration, scope
or area reasonable under such circumstances shall be substituted for the stated
duration, scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and area
permitted by law.
(d) In the event of the breach or a threatened breach by
Executive of any of the provisions of this paragraph 6, the Company, in addition
and supplementary to other rights and remedies existing in its favor, may apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions thereof (without posting a bond or other security).
7. Executive and Company Representations. Executive hereby
represents and warrants to the Company that (i) the execution, delivery and
performance of this Agreement by Executive does not and will not conflict with,
breach, violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which Executive is a party or by which he is bound,
and (ii) upon the execution and delivery of this Agreement by the Company, this
Agreement shall be the valid and binding obligation of Executive, enforceable in
accordance with its terms. The Company hereby represents and warrants to
Executive that it is not entering into this Agreement in contemplation of any
merger or sale of the Company.
8. Survival. Paragraphs 4, 5, 6 and 7 shall survive and
continue in full force in accordance with their terms notwithstanding any
termination of the Employment Period.
9. Notices. All notices, requests, demands and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to be delivered and receive five business days
after having been deposited in the United States mail and enclosed in a
registered or certified post-paid envelope; one business day after having been
sent by overnight courier; when personally delivered or sent by facsimile
communications equipment of the sending party on a business day, or otherwise on
the next succeeding business day thereafter; and in each case addressed to the
respective party at the address set forth below or to such other changed
addresses as the party may have fixed by notice as provided herein:
Notices to Executive:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Pillsbury, Madison & Sutro LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Notices to the Company:
Coram Healthcare Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
11. Complete Agreement. This Agreement, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
12. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
13. Successors and Assigns. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive, the Company and
their respective heirs, successors and assigns, except that Executive may not
assign his rights or delegate his obligations hereunder without the prior
written consent of the Company. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) of 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
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extent that the Company would be required to perform it if no such succession
had taken place.
14. Attorneys' Fees and Costs. If any action at law or equity
is necessary to enforce or interpret the terms of this Agreement, Executive
shall be entitled to reasonable attorneys' fees, costs and disbursements in
addition to any relief to which he may otherwise be entitled if he is the
prevailing party in such action.
15. Choice of Law. This Agreement will be governed by the
internal law, and not the laws of conflicts, of the State of Colorado.
16. Amendment and Waiver. The provisions of this Agreement may
be amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
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* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
CORAM HEALTHCARE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Chairman/Chief Executive Officer
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Date: December 17, 1999
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EXECUTIVE:
Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Date: November 30, 1999
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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SCHEDULE A
BONUS COMPENSATION
Beginning with the Company's fiscal year 2000, if the Company hits the
percentage of its EBITDA Target set forth below, Executive will be entitled to
receive as Bonus that percentage of his Base Salary (as in effect on the last
day of the fiscal year in question) set forth below. If the Company hits a
percentage of its EBITDA Target which is greater than one of the percentages set
forth below but less than the next succeeding percentage, Executive shall be
entitled to receive a pro rata portion of the incremental Base Salary payment.
PERCENTAGE OF EBITDA TARGET PERCENTAGE OF BASE SALARY
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100.0%* 60%*
101.5% 65%
103.0% 70%
104.5% 75%
106.0% 80%
107.5% 85%
109.0% 85%
110.5% 95%
112.0% 100%
114.0% 110%
116.0% 121%
118.0% 132%
120.0% 143%
122.0% 154%
124.0% 166%
126.0% 177%
128.0% 188%
130.0% 200%
132.0% 211%
134.0% 212%
136.0% 223%
138.0% 234%
140.0% 245%
142.0% 256%
144.0% 267%
146.0% 278%
148.0% 289%
150.0% 300%
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* These represent the "Target Bonus" levels for purposes of this Agreement.
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AMENDMENT NUMBER ONE TO EMPLOYMENT AGREEMENT
This is Amendment Number One to the Employment Agreement dated November
30, 1999 between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Executive") and Coram Healthcare
Corporation, a Delaware corporation, (the "Company") and is to be effective
March 1, 2000.
For good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Subsection 3(e) of the Employment Agreement shall be amended by
replacing such subsection with the following rewritten Subsection 3(e):
"(e) The Company shall provide Executive corporate housing up
to $3,500.00 in Denver Colorado for all or such portion of the Employment Period
as is requested by Executive."
2. The remaining terms of the Employment Agreement shall remain in full
force and effect.
In Witness Whereof, each of the parties has executed this Amendment
Number One to be effective as of the day and year first written above.
CORAM HEALTHCARE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Its: Chief Executive Officer
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EXECUTIVE
Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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