EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of January 1, 1995,
between The Multicare Companies, Inc., a Delaware corporation (the
"Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Executive").
The Company desires to employ the Executive, and the Executive desires
to accept such employment, on the term and conditions of this Agreement.
Certain terms used herein are defined in Section 11.1.
NOW, THEREFORE, in consideration of the agreements and obligations
herein contained, the Company and the Executive hereby agree as follows:
1.. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 Employment by the Company. The Company agrees to employ the
Executive for the Term (as defined in Section 2), to render full-time
services to the Company as its Executive Vice President to perform such
duties commensurate with such office as the Board of Directors of the Company
(the "Board of Directors") and/or the Co-Chief Executive Officers of the
Company shall reasonably direct. The Executive shall report directly to the
Co-Chief Executive Officers of the Company. The Executive shall devote his
full business time to the business of the Company during the term.
1.2 Acceptance of Employment by the Executive. The Executive hereby
accepts such employment and agrees to render the services described above.
The Executive further agrees to accept election and to serve during all or
any part of the Term as a director of the Company and as an officer or
director of any subsidiary of the Company, without any compensation therefor
other than as specified in this Agreement, if elected to any such position.
2.TERM OF EMPLOYMENT.
2.1 The term of the Executive's employment under this Agreement (the
"Term") shall commence on the date hereof and shall end on December 31, 1997,
unless earlier terminated pursuant to Section 4 hereof; provided, that the
Term shall automatically be extended for successive one-year periods on each
January 1, commencing January 1, 1998 unless timely written notice of
termination of the Term is provided in accordance with Section 2.2. Each one-
year period commencing each January 1 during the Term is referred to herein
as an "Employment Year".
2.2 The Company or the Executive may choose not to extend or renew
the Term of Executive's employment hereunder without cause or reason, upon
written notice to the other at least one hundred eighty (180) days prior to
any January 1 occurring after January 1, 1997.
3.COMPENSATION AND OTHER BENEFITS.
3.1 Salary. As compensation for services to be rendered pursuant to
this Agreement, the Company agrees to pay the Executive, for each Employment
Year during the Term, an annual direct salary of $250,000 per year (the
"Annual Direct Salary"). The Annual Direct Salary shall be reviewed by the
Board of Directors on each anniversary of this Agreement and shall be
adjusted upwards as of each such anniversary. In no event shall the Annual
Direct Salary be decreased from the Annual Direct Salary payable for the
immediately preceding year without the express written consent of the
Executive.
3.2 Incentive Compensation. The Co-Chief Executive Officers shall
prepare a business plan establishing the financial and business goals of the
Company prior to the start of each fiscal year during the Term (the "Business
Plan"). The Business Plan shall set forth the goals of, and performance
expectations for, the Executive for such year. The Board of Directors shall
establish an incentive compensation opportunity for the Executive under the
Company's Key Employee Incentive Compensation Plan (the "KEICP") based on
such Business Plan. The Executive's KEICP opportunity shall provide an
incentive pay opportunity consistent with the practices of similar organiza
tions in rewarding their senior executives and shall be consistent with past
practice. For 1995, the Executive's incentive for achieving Expected
Performance under the KEICP shall be 50% of the Executive's Annual Direct
Salary in effect on January 1, 1995; Threshold Performance shall be 30% of
such Annual Direct Salary; and Outstanding Performance shall be 75% of such
Annual Direct Salary. Any incentive award earned by the Executive pursuant
to the KEICP shall be paid to the Executive during the month of December in
the applicable fiscal year.
3.3 Employee Benefit Plans. The Executive shall be entitled to
participate in or receive benefits under all Company employment benefit plans
including, but not limited to, any pension, profit-sharing plan, stock option
or other equity award or participation plans, savings plan, supplemental
retirement income, medical or health-and-accident plan or arrangement made
available by the Company to its executives and key management employees,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. The Company shall also
provide the Executive with the following minimum benefits:
(i) Life Insurance: the Company shall acquire and maintain
for the Executive a supplemental term life insurance policy with a death
benefit equal to at least four (4) times the Executive's then current Annual
Direct Salary to a maximum death benefit of $2,000,000. The Executive, or a
valid trust established by the Executive, shall own such policy and the
Executive shall be liable for any income taxes due annually on the reported
income resulting from the Company's payment of annual premiums during the
Term. This policy shall be, and shall provide that it is, assumable by the
Executive at the termination or expiration of the Term.
(ii) Disability Insurance: In the event that the Company's
group long-term disability insurance policy benefit limit, if any, does not
provide for the Executive to receive the 66.67% of income replacement at the
time of disability, or the Company does not at any time during the Term
maintain a group long-term disability insurance policy, the Company shall
make available a long-term disability insurance policy for the Executive,
which policy shall provide that in the event the Executive is unable to
perform his duties hereunder as a result of incapacity due to physical or
mental illness, he shall be entitled to receive benefits from all sources
(Social Security, group long-term disability and supplemental long-term
disability) equal to 66.67% of his then current Annual Direct Salary until
the Executive reaches the age of 65 or dies. The Company shall continue to
pay to the Executive his Annual Direct Salary during any applicable
elimination or waiting period not in excess of one hundred eighty (180) days.
(iii) 401(k) Wrap Plan/Deferred Compensation Plan
Participation: The Executive shall have the option to participate in a
401(k) Wrap Plan to be established by the Company to enable the Executive to
defer portions of current income from income tax liability until a later
time, provided such election to defer income is made in compliance with the
Code.
(iv) Health and Medical Insurance: The Company shall pay all
premiums otherwise due from the Executive for family coverage in the medical
and dental insurance programs offered by the Company to its executives from
time to time.
3.4 Vacation. During the Term, the Executive shall be entitled to
the number of paid vacation days in each calendar year determined by the
Company from time to time for its senior executive officers, but not less
than four (4) weeks in any calendar year. The Executive shall also be
entitled to all paid holidays given by the Company to its senior executive
officers.
3.5 Reimbursement of Expenses. During the Term, the Company shall
reimburse the Executive promptly for all reasonable expenses incurred by him
(in accordance with the policies and procedures established by the Board of
Directors for the Company's senior executive officers) in performing services
hereunder.
3.6 Automobile Allowance. During the Term, the Executive shall be
entitled to use for business and personal reasons an automobile of his choice
leased by the Company, subject to the approval of the Co-Chief Executive
Officers, in an amount up to $600 per month. The Company shall pay all
amounts in respect of premiums for collision and liability insurance (in
amounts determined by the Executive) and will reimburse the Executive for all
operating, maintenance and repair expenses.
3.7 Agreement Signing Incentive. The Executive shall receive as of
the date hereof a special one-time grant pursuant to the Company's Stock
Option Plan of 9,000 nonqualified options to purchase shares of the Company's
common stock (the "Options"). The Options shall have an exercise price equal
to the closing bid price of the Company's common stock on the date hereof as
reported by The NASDAQ Stock Market and shall vest ratably over three years.
3.8 Other Benefits. The Executive shall be entitled to receive such
other requisites, e.g. club memberships and fringe benefits as the Board of
Directors deems appropriate.
4.TERMINATION.
4.1 Termination Upon Death. If the Executive dies during the Term,
this Agreement shall terminate as of the date of death, and the Executive's
legal representatives, successors, heirs or assigns shall be entitled to
receive the amounts set forth in Section 6.1.
4.2 Termination Upon Disability. If during the Term, the Executive
becomes subject to a Disability (as defined in the following sentence), the
Company may at any time thereafter, by notice to the Executive, terminate the
Term of Executive's employment hereunder, except that the Executive shall be
entitled to receive the amounts specified in Section 6.1. For purposes of
this Agreement, the term "Disability" shall mean incapacity due to physical
or mental illness which has caused the Executive to be unable to
substantially perform his duties with the Company on a full time basis for
(i) a period of one hundred eighty (180) consecutive days or (ii) for shorter
periods aggregating two hundred seventy (270) days in any three hundred sixty-
five (365) day period. During any period of Disability, the Executive agrees
to submit to reasonable medical examinations upon the request, and at the
expense, of the Company. Nothing in this Section 4.2 shall be deemed to
extend the Term.
4.3 Termination for Cause. During the Term, the Company shall have
the right to terminate the Term of Executive's employment with the Company
for Cause. For purpose hereof, a termination by the Corporation for "Cause"
shall mean termination by action of at least a majority of the members of the
Board of Directors of the Corporation (excluding Executive) at a meeting duly
called and held upon at least 15 days' prior written notice to Executive
specifying the particulars of the action or inaction alleged to constitute
"Cause" (and at which meeting Executive and his counsel were entitled to be
present and given reasonable opportunity to be heard) because of (i)
Executive's conviction of any felony (whether or not involving the Company or
any of its subsidiaries) involving moral turpitude which subjects, or if
generally known, would subject, the Company or any of its subsidiaries to
public ridicule or embarrassment, (ii) fraud or other willful misconduct by
Executive in respect of his obligations under this Agreement, or (iii)
willful refusal or continuing failure to attempt, without proper cause and,
other than by reason of illness, to follow the lawful directions of the Board
of Directors, following thirty days' prior written notice to Executive of his
refusal to perform or failure to attempt to perform such duties, and which
during such thirty day period such refusal or failure to attempt is not cured
by the Executive. "Cause" shall not include a bona fide disagreement over a
corporate policy, so long as Executive does not willfully violate on a
continuing basis specific written directions from the Board of Directors,
which directions are consistent with the provisions of this Agreement.
Action or inaction by Executive shall not be considered "willful" unless done
or omitted by him intentionally or not in good faith and without his
reasonable belief that his action or inaction was in the best interests of
the Company, and shall not include failure to act by reason of total or
partial incapacity due to physical or mental illness.
5.TERMINATION BY THE EXECUTIVE.
The Executive may terminate the Term on written notice to the Company
upon the continuation of any of the following events for more than ten (10)
days after Executive delivers notice to the Company thereof (other than with
respect to paragraph (vi), which shall be governed by Section 7 hereof) and
the occurrence of any one or more of the following (each "Good Reason"):
(i) Executive shall fail to be re-elected as the Company's
Executive Vice President or shall be removed from such position at any time
during the Term;
(ii) Executive shall fail to be vested with the powers and
authority of Executive Vice President of the Company; or the powers and
authority of such position or the Executive's authority and responsibilities
hereunder shall be diminished in any material respect;
(iii) Executive's principal place of employment is moved more
than 20 miles without Executive's prior written consent;
(iv) any material failure by the Company to comply with any of
the provisions of this Agreement including, without limitation, failure to
make any payment required to be made by the Company pursuant to this
Agreement within five (5) business days after the date such payment is
required to be made;
(v) any purported termination by the Company of Executive's
employment otherwise than as expressly permitted by this Agreement;
(vi) upon a Change of Control (as defined in Section 7); or
(vii) the commencement of a proceeding or case, with or
without the application or consent of the Company or any of its subsidiaries,
in any court or competent jurisdiction, seeking (A) the liquidation,
reorganization, dissolution or winding-up of the Company or its subsidiaries,
or the composition or readjustment of the debts of the Company or its
subsidiaries, (B) the appointment of a trustee, receiver, custodian,
liquidator or the like for the Company or its subsidiaries or of all or any
substantial part of their respective assets, or (C) any similar relief in
respect of the Company or its subsidiaries under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts.
6.PAYMENTS UPON TERMINATION.
6.1 Termination Due to Death or Disability. Upon the death or
Disability of the Executive (A) the Company shall pay to the Executive or his
estate (i) the Annual Direct Salary and other accrued benefits earned up to
the last day of the month of the Executive's death or Disability (subject to
the last sentence of 3.3(ii)), (ii) all deferred amounts earned under the
KEICP or similar bonus plan, and (iii) if any bonus, under the KEICP or
otherwise, shall be payable in respect of the year in which the Executive's
death or Disability occurs, such bonus(es) prorated up to the last day of the
month of the Executive's death or Disability and (B) all restricted stock,
stock option and performance share awards made to the Executive shall
automatically become fully vested as of the date of death or Disability.
6.2 Termination for Cause. Upon termination of the Term by the
Company for Cause, the Company's obligations to the Executive under this
Agreement shall be limited to the payment of unpaid Annual Direct Salary and
benefits accrued up to the effective date of termination specified in the
Company's notice of termination.
6.3 Termination by Executive for Good Reason or by the Company other
than for Certain Reasons.
(a) In the event (i) the Company terminates the Term for a
reason other than for (A) Cause or (B) due to death or Disability or (ii) the
Executive terminates the Term for Good Reason, then: (1) the Company shall
pay the Executive (A) (i) the Annual Direct Salary and other accrued benefits
earned up to the last day of the month of the Executive's employment, (ii)
all deferred amounts earned under the KEICP or similar bonus plan and (iii)
if any bonus, under the KEICP or otherwise, shall be payable in respect of
the year in which the Term is terminated, such bonus(es) prorated up to the
last day of the month of such termination and (B) a lump sum cash payment
within thirty (30) days following the date of termination equal to the
greater of (x) all remaining Annual Direct Salary payable during the Term and
(y) an amount equal to two times the Annual Direct Salary for the then
current Employment Year and (2) all stock options, stock awards and similar
equity rights, if any, shall vest and become exercisable immediately prior to
the termination of the Term and remain exercisable through their original
terms with all rights.
(b) Following termination of the Term for any reason, other than
for Cause or upon the death of Executive, the Company shall also maintain in
full force and effect, for the continued benefit of the Executive for a
period equal to the greater of (x) the period of the Term otherwise remaining
or (y) two (2) years without giving effect to such termination, all employee
benefit plans and programs to which the Executive was entitled prior to the
date of termination (including, without limitation, the benefit plans and
programs provided for herein) if the Executive's continued participation is
possible under the general terms and provisions of such plans and programs.
In the event that the Executive's participation in any such plan or program
is barred by the terms thereof, the Company shall pay to the Executive an
amount equal to the annual contribution, payments, credits or allocations
made by the Company to him, to his account or on his behalf under such plans
and programs from which his continued participation is barred except that if
Executive's participation in any health, medical, life insurance or
disability plan or program is barred, the Company shall obtain and pay for,
on Executive's behalf, individual insurance plans, policies or programs which
provide to Executive health, medical, life and disability insurance coverage
which is equivalent to the insurance coverage to which Executive was entitled
prior to the date of termination.
6.4 Termination Due to a Change of Control. Upon the termination of
the Term due to a Change of Control, the Company shall pay the amounts to and
provide the benefits for the Executive as set forth in Section 7.1 and 7.4
hereof.
7.CHANGE OF CONTROL.
7.1 (a) Upon a Change of Control, the Executive may terminate the
Term upon notice to the Company, effective as set forth in such notice (i)
for any reason or for no reason during the initial ninety (90) day period
following the date of such Change of Control or (ii) at any time, in the
event that within twenty-four (24) months following the date of a Change of
Control, the continuation of any event constituting Good Reason hereunder for
more than ten (10) days after the Executive delivers notice thereof to the
Company (other than as contemplated by Section 5(vi)) occurs. In the event
that the Executive terminates the Term pursuant to this Section 7.1, the
Company shall make a lump-sum payment to the Executive equal to three times
the sum of (i) his then current Annual Direct Salary and (ii) an amount equal
to the highest annual bonus (KEICP and other amounts being aggregated) award
received within the three (3) years immediately preceding the Employment Year
in which such termination occurs; provided, that in no event shall such
amount be less than the bonus payable at an Expected Level of performance
under the KEICP for 1995. The Company shall also maintain the benefit
coverages for the Executive specified in Section 6.3 above for a period of
twenty-four (24) months.
(b) Upon (i) the execution of a definitive agreement (including,
without limitation, any "lock-up" agreement with any of the Company's
principal stockholders) which contemplates a transaction, or (ii) the
commencement of any tender or exchange offer or similar transaction for or
involving the Company's securities, which, in the case of any transaction of
the type described by clause (i) or (ii), if consummated, could result in a
Change in Control, all restricted stock, stock option and performance share
awards made to the Executive shall become automatically fully vested in order
to provide the Executive with a reasonable time period to enable the
Executive to obtain the economic benefit of the contemplated transaction with
respect to all restricted stock, stock option and performance share awards
then held by him. In the event the Executive does not exercise any such
accelerated restricted stock, stock options or awards in the transaction
resulting in a Change of Control, the Executive will have a six month period
from the date of a Change of Control in which to exercise such restricted
stock, stock options and awards. In the event the transaction contemplated
by the definitive agreement referred to above is not consummated and such
definitive agreement is terminated, all accelerated restricted stock, stock
options and awards shall be deemed restored to the vesting schedules in
effect at the time of execution of such definitive agreement.
(c) Upon the termination of the Term upon a Change of Control,
the Company shall provide to the Executive outplacement and career counseling
services as may be requested by the Executive; such service costs not to
exceed 15% of the Executive's then-current Annual Direct Salary.
0.1 For purposes of this Agreement, the term "Change of Control"
shall mean:
(a) the acquisition (after the date hereof) of the beneficial
ownership of a majority of the Company's voting securities and/or
substantially all of the assets of the Company by a single person or entity
or a group of affiliated persons or entities, or
(b) the merger, consolidation or combination or similar
transaction of the Company with an unaffiliated corporation in which the
Board of Directors immediately prior to such merger, consolidation or
combination constitute less than a majority of the board of directors of the
surviving, new or combined entity.
7.3 For purposes of this Agreement the term a "date of a Change of
Control" shall mean:
(a) the first date (after the date hereof) on which a single
person and/or entity, or group of affiliated persons and/or entities, acquire
the beneficial ownership of majority of the Company's voting securities; or
(b) the date of the transfer of all or substantially all of the
Company's voting securities; or
(c) the date on which a merger, consolidation or combination of
the type specified in Section 7.2(b) is consummated.
7.4 Certain Taxes. The Company shall indemnify and hold the
Executive harmless from and against (i) the imposition of excise tax (the
"Excise Tax") under Section 4999 of the Code, on any payment made under this
Agreement (including any payment made under this paragraph) and any interest,
penalties and additions to tax imposed in connection therewith, and (ii) any
federal, state or local income tax imposed on any payment made pursuant to
this paragraph. The Executive shall not take the position on any tax return
or other filing that any payment made under this Agreement is subject to the
Excise Tax, unless, in the opinion of independent tax counsel reasonably
acceptable to the Company, there is not reasonable basis for taking the
position that any such payment is not subject to the Excise Tax under U.S.
tax law then in effect. If the Internal Revenue Service makes a claim that
any payment or portion thereof is subject to the Excise Tax, at the Company's
election, and the Company's direction and expense, the Executive shall
contest such claim; provided, however, that the Company shall advance to the
Executive the costs and expenses of such contest, as incurred. For the
purpose of determining the amount of any payment under clause (ii) of the
first sentence of this paragraph, the Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation
applicable to individuals in the calendar year in which such indemnity
payment is to be made and state and local income taxes at the highest
marginal rates of taxation applicable to individuals as are in effect in the
jurisdiction in which the Executive is resident, net of the maximum reduction
in federal income taxes that could be obtained from deduction of such state
and local taxes.
8.RESTRICTIVE COVENANTS.
8.1 Noncompetition Agreement. In the event that (i) the Term is
terminated by the Company for Cause, (ii) the Term is terminated by the
Executive for other than Good Reason, or (iii) the Executive does not accept
the Company's offer to extend or renew the Term. The Executive shall not
directly or indirectly enter into or engage generally in direct or indirect
competition with the Company in the business of nursing care, in any state in
which the Company is then doing business, either as an individual on his own
or as a partner or joint venturer, or as a director, officer, shareholder
(except as an incidental shareholder), employee or agent for any person, for
a period of one year after the date of such termination of the Term.
8.2 Confidentiality. During the Term and for two (2) years
thereafter, the Executive shall not, without the written consent of the Board
of Directors or a person authorized thereby, knowingly disclose to any
person, other than an employee of the Company or a person to whom disclosure
is reasonably necessary or appropriate in connection with the performance by
the Executive of his duties as an executive of the Company, any material
confidential information obtained by him while in the employ of the Company
with respect to any of the Company's services, products, improvements,
processes, customers, methods of distribution or any business practices the
disclosure of which he knows will be materially damaging to the Company;
provided, however, that confidential information shall not include any
information publicly available at the time of the alleged disclosure (other
than as a result of unauthorized disclosure by the Executive) or any
information of a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that conducted by the
Company. Upon termination of the Term upon the request of the Company, the
Executive shall promptly deliver to the Corporation all correspondence,
manuals, letters, notes, notebooks, reports and any other documents or
tangible items containing or constituting confidential information about the
business of the Company.
8.3 Nonsolicitation of Employees. The Executive agrees not to entice
or solicit, directly or indirectly, any employee of the Company to leave the
employ of the Company to work with the Executive or the entity with which the
Executive was affiliated for a period of one year following the Executive's
termination of employment with the Company.
8.4 Injunctive Relief. The Executive agrees that any breach of the
restrictions set forth in this Section 8 will result in irreparable injury to
the Company for which it shall have no meaningful remedy in law and the
Company shall be entitled to injunctive relief in order to enforce the
provisions thereof. In the event that any provision of this Section 8 shall
be determined by any court of competent jurisdiction to be unenforceable in
part by reason of it being too great a period of time or covering too great a
geographical area, it shall be in full force and effect as to that period of
time or geographical area determined to be reasonable by the court.
9.INDEMNIFICATION.
(a) The Executive shall be provided with directors' and
officers' insurance in connection with his employment hereunder and service
as a director as contemplated hereby with such coverage (including with
respect to unpaid wages and taxes not remitted when due) and in such amounts
as shall be reasonably satisfactory to the Executive, and the Company shall
maintain such insurance in effect for the period of the Executive's
employment hereunder and for not less than five years thereafter; provided,
however, than in the event that the Company shall not obtain such insurance,
it shall provide or cause the Executive to be provided with indemnity (or a
combination of indemnity and directors' and officers' insurance) in
connection with his employment hereunder with such coverage, in such amounts
and from such person or persons as shall be reasonably satisfactory to the
Executive, and the Company shall maintain such indemnity (or combination of
indemnity and directors' and officers' insurance) or cause such indemnity (or
such combination) to be maintained for the period of the Executive's
employment hereunder and not less than five (5) years thereafter.
(b) To the fullest extent permitted or required by the laws of
the State of Delaware, the Company shall indemnify and provide reasonable
advances for expenses to the Executive, in accordance with the terms of such
laws, if the Executive is made a party, or threatened to be made a party, to
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
the Executive is or was an officer or director of the Company or any
subsidiary or the Company, in which capacity the Executive is or was serving
at the Company's request and in furtherance of the Company's best interests,
against expenses (including reasonable attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding.
10. NO DUTY TO MITIGATE. The Executive shall have no duty to
mitigate any severance amount or any other amounts payable to him hereunder
and such amounts shall not be subject to reduction for any compensation
received by the Executive from employment in any capacity or other source
following the termination of the Executive's employment with the Company and
its subsidiaries.
11. OTHER PROVISIONS.
11.1 Certain Definitions. As used herein, the following terms shall
be defined as follows:
"affiliate" of any person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such person. For the purpose of this definition, "control" when
used with respect to any person means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the term
"controlling" and "controlled" have meanings correlative to the foregoing.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"person" means individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a governmental entity or any department or agency thereof.
11.2 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telecopied
or sent by certified, registered or express mail, postage prepaid. Any such
notice shall be deemed given when so delivered personally, telecopied or sent
by express mail, or if sent by certified or registered mail, five days after
the date of deposit in the United States mail, as follows:
(i) if to the Company, to:
The Multicare Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
telephone: (▇▇▇)▇▇▇-▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
(ii) if to the Executive, to him at his address then reflected
in the personnel records of the Company.
Either party may change its or his address for notice hereunder by
notice to the other party in accordance with this Section 11.2.
11.3 Waivers and Amendments. This Agreement may be amended, modified,
superseded or cancelled, and the terms and conditions hereof may be waived,
only by a written instrument signed by the parties or, in the case of a
waiver, by the party waiving compliance. No delay on the part of any party
in exercising any right or remedy hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any such right or
remedy, nor any single or partial exercise of any such right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy.
11.4 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New Jersey applicable
to agreements made and to be performed entirely within such State.
11.5 Assignability and Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the Company and its successors and
permitted assigns and upon Executive and his heirs, executors, legal
representatives, successors and permitted assigns. However, neither party
may assign, transfer, pledge, encumber, hypothecate or otherwise dispose of
this Agreement or any of its or his rights hereunder without prior written
consent of the other party, and any such attempted assignment, transfer,
pledge, encumbrance, hypothecation or other disposition without such consent
shall be null and void and without effect.
11.6 Enforcement of Separate Provisions. Should any provision or
provisions of this Agreement be determined to be unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
11.7 Arbitration. In the event that any disagreement or dispute shall
arise between the parties concerning this Agreement, the issue(s) will be
submitted to JAMS/Endispute, Inc. for binding arbitration. Any award entered
shall be final and binding upon the parties hereto and judgment upon the
award may be entered in any court having jurisdiction thereof. All fees of
attorneys, accountants, advisors or other experts or witnesses, together with
all administrative costs incurred in connection with such actions, shall be
paid by the Company.
11.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but both of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed or caused the execution of
this Agreement as of the date first above written.
THE MULTICARE COMPANIES, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Co Chief Executive Officer
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇