Exhibit 10.6
AMENDED AND RESTATED EMPLOYMENT
AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AND NON-COMPETITION AGREEMENT (this “ Agreement
”) is executed as of the 8 th day of October 2008 and will be made effective
as of the 16 th day of July, 2008 (the “ Effective
Date ”), by and between Addus HealthCare, Inc., an
Illinois corporation (the “ Company ”) and David
W. Stasiewicz, an individual domiciled in the State of Illinois
(the “ Executive ”).
WHEREAS , the Company, its subsidiaries and affiliates
(collectively, the “ Addus HealthCare Group ”)
provide home health staffing and home care services to individuals,
county and state governments, health maintenance organizations,
independent physician associations, insurance companies,
facilities, other business purchasers of such services, and to the
general public at large.
WHEREAS , the Company and Executive are party to an
existing Employment and Non-Competition Agreement, dated as of
September 19, 2006 (the “ Original Employment
Agreement ”).
WHEREAS , the Company and Executive entered into the
Original Employment Agreement, which is amended and restated in its
entirety by this Agreement, and the Company desires to continue to
employ Executive and Executive desires to continue to be employed
by the Company, all upon the terms and conditions hereinafter set
forth.
WHEREAS , the parties desire that upon the Effective
Date, the Original Employment Agreement shall automatically
terminate with no further action required by the parties hereto, be
of no further force and effect, and this Agreement shall govern the
relationship between the parties.
NOW, THEREFORE
, in consideration of the mutual
covenants and agreements set forth herein, the parties hereto,
intending to be legally bound, agree as follows:
1. Term of
Employment . The
Company hereby employs the Executive, and the Executive hereby
accepts continued employment by the Company, for the period
commencing as of the Effective Date of this Agreement and ending on
the fourth (4th) anniversary of the Effective Date, or on such
earlier date as provided pursuant to the terms and conditions of
this Agreement (the “ Initial Employment Term
”). At the end of the Initial Employment Term, this Agreement
shall automatically renew for successive one (1) year terms
(each, an “ Additional Employment Term ”, and
together with the Initial Employment Term, the “
Employment Term ”) unless the Company provides notice
to the Executive of its intention not to renew this Agreement at
least thirty (30) days prior to the expiration of the Initial
Employment Term or any Additional Employment Term. During the
Employment Term, the Executive shall (i) devote substantially
all of his professional time, loyalty and efforts to discharge his
duties hereunder on a timely basis; (ii) use his best efforts
to loyally and diligently serve the business and affairs of the
Addus Healthcare Group; and (iii) endeavor in all respects to
promote, advance and further the Addus Healthcare Group’s
interests in all matters.
2. Employment
Duties . The Company
will employ the Executive as its Vice President of Finance and
Controller. The Executive’s principal duties and
responsibilities shall be those reflected in the employment
description set forth on Exhibit A hereto.
3. Compensation
. The Company will pay the Executive
as follows during the Employment Term:
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(a)
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Base
Salary . Commencing
on the Effective Date of this Agreement, the Company shall pay the
Executive a base salary at the annual rate of One Hundred
Fifty-Seven Thousand Five Hundred Dollars ($157,500), which shall
be paid in accordance with the normal payroll practices of the
Company and shall be subject to withholding for applicable Federal,
State and local taxes. Thereafter, the Executive’s base
salary shall be subject to review and adjustment by the Board of
Directors on or about the anniversary date of his original hiring
by the Company for each year during the Employment Term (as
adjusted from time-to-time, the “ Base Salary
”).
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(b)
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Bonus . The Executive, at the discretion of the Board
of Directors, shall be eligible (but not entitled) to receive an
annual bonus during each fiscal year in an amount as set forth on
Exhibit B hereto, which amount may be amended at the
sole discretion of the Board of Directors. All amounts payable
pursuant to this Section 3(b), if any, shall be paid within no
more than thirty (30) days after completion of the
Company’s audited financial statements for the then current
fiscal year and shall be subject to applicable withholding taxes.
Bonus is not salary and is earned on the day it is paid. To be
eligible to receive the bonus, the Executive must be employed and
in good standing and must not have given notice of termination on
or prior to such date.
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4. Expenses
. It is recognized that the
Executive in the performance of his duties hereunder may be
required to expend sums for travel, entertainment and lodging.
During the Employment Term, the Company shall reimburse the
Executive for reasonable business expenses incurred by him during
the Employment Term in connection with the performance of his
duties hereunder conditioned upon and subject to the
Company’s established policies and procedures, including
written receipt from the Executive of an itemized accounting in
accordance with the Company’s regular business expense
verification practices.
5. Benefits
. During the Employment Term, the
Executive shall be entitled to benefits consistent with benefits
paid to other similarly situated employees pursuant to the
Company’s administrative benefit plan, and in accordance with
its policies, which may change at the sole discretion of the Board
of Directors. Benefits shall be at least:
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(a)
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Three
(3) weeks paid vacation during the Executive’s first
five (5) years of employment and four (4) weeks paid
vacation during each subsequent year of employment. Vacation may be
carried over to a subsequent year of employment, up to a maximum of
two (2) full years of accrued vacation time thereafter (i.e.,
no more than six weeks during the Executive’s first five
years and no more than eight weeks during the Executive’s
subsequent years).
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(b)
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Five
(5) days personal/sick leave per year, with pay. Personal/sick
days may be carried over to a subsequent year of employment, up to
a maximum of two (2) full years of accrued personal/sick days
(i.e., no more than ten days).
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(c)
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Six Company
holidays, plus two floating holidays.
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(d)
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Coverage under
the Company’s Health Benefit Plan, which may change, at the
sole discretion of the Company’s Board of Directors, from
time to time. The Company will cover the Executive and his
dependents, if any, to the same extent and according to the same
terms as the Company’s other executives are
covered.
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(e)
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Life insurance
policy with a face amount of up to five (5) times the Base
Salary, provided that the Company shall not be required to spend
greater than three percent (3%) of the Base Salary in
purchasing such insurance policy.
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(f)
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Short-term and
long-term disability insurance to the same extent and according to
the same terms as the Company’s other executives are
covered.
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6. Termination by
Company .
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(a)
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The Company may
terminate the Executive’s employment hereunder at any time
for reasonable cause. The term “reasonable cause” shall
be limited to the following:
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(i) The Executives dies or the
Executive is physically or mentally disabled (“
Disability ”) so that the Executive is or, in the
opinion of an independent physician retained by the Company for
purposes of this determination will be, unable to perform his
duties in a manner satisfactory to the Company for a period of
ninety (90) days out of any one hundred eighty
(180) consecutive-day period (in which event the Executive
shall be deemed permanently disabled);
(ii) A material breach or omission
by the Executive of any of his duties or obligations under this
Agreement (except due to Disability);
(iii) The Executive shall engage in
any action that materially damages, or that may reasonably be
expected to materially damage, the Addus Healthcare Group or the
business or goodwill thereof;
(iv) The Executive shall breach his
fiduciary duty to the Addus Healthcare Group;
(v) The Executive shall commit any
act involving fraud, the misuse or misappropriation of money or
other property of the Addus Healthcare Group, a felony, habitual
use of drugs or other intoxicants or chronic
absenteeism;
(vi) Gross negligence or willful
misconduct by the Executive;
(vii) The Executive shall commit
acts constituting gross insubordination, such as, without
limitation, the intentional disregard of any reasonable directive
of the Company’s Chief Executive Officer (“ CEO
”), Chief Financial Officer (“ CFO ”) or
Board of Directors; and
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(viii) The Executive shall fail to
perform any material duty in a timely and effective manner and
shall fail to cure any such performance deficiency after receipt of
written notice of the deficiency from the Company’s CEO, CFO
or Board of Directors, which notice shall designate the period of
time within which the performance deficiency must be cured to the
satisfaction of the Company’s CEO, CFO or the Board of
Directors, as applicable, in order to prevent a termination for
reasonable cause; provided, however, that Executive shall only be
permitted the opportunity to cure performance deficiency two times
in any twelve-month rolling period.
Termination of the Executive’s
employment for reasonable cause shall terminate the Employment Term
but shall not affect the Executive’s obligations pursuant to
Section 9 hereof, which obligations shall remain in effect for
the period therein provided.
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(b)
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The Company may
terminate the Executive’s employment hereunder at any time
for any reason other than reasonable cause. If the Company
terminates the Executive’s employment hereunder upon less
than thirty (30) days notice, the Company shall pay the
Executive a pro rata portion of his salary and shall continue to
provide the benefits described in Section 3 and
Section 5, respectively, for the period of deficient
notice.
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7. Termination by the
Executive . The
Executive may terminate his obligations hereunder upon not less
than thirty (30) days prior written notice to the Company. If
the Executive terminates his employment hereunder upon less than
thirty (30) days notice, the Executive shall pay the Company a
pro rated portion of his salary and benefits described in
Section 3 and Section 5, respectively, for the period of
deficient notice. The Company (a) at its sole option, may
waive all or any portion of such notice requirement and
(b) shall waive all or a portion of such notice requirement
upon the Executive’s payment of that portion of the
Executive’s annual base salary that would otherwise be paid
to the Executive during the remaining notice period. Termination of
the Executive’s employment by the Executive shall terminate
the Employment Term, but shall not affect the Executive’s
obligations pursuant to Section 9 hereof which obligations
shall remain in effect for the period therein provided.
8. Rights and Obligations Upon
Termination .
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(a)
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If the
Executive’s employment is terminated by the Company pursuant
to Section 6(a) hereof, the Executive shall have no further
rights against the Addus Healthcare Group hereunder, except for the
right to receive:
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(i) Any unpaid base salary under
Section 3(a) hereof for any period prior to the effective date
of termination;
(ii) Any accrued but unpaid benefits
under Section 5 hereof.
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(b)
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If the
Executive’s employment is terminated by the Company pursuant
to Section 6(b) hereof, the Executive shall be entitled to, in
lieu of any further salary payments to the Executive for periods
subsequent to the date of termination;
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(i) Any unpaid base salary under
Section 3(a) hereof for any period prior to the effective date
of termination;
(ii) A pro rata payment for bonus
under Section 3(b) hereof for any period prior to the
effective date of such termination;
(iii) Any accrued but unpaid
benefits under Section 5 hereof; and
(iv) Conditioned upon
Executive’s strict compliance with the post-employment
restrictions described in Section 9 below, severance pay
(“ Severance Pay ”) in the total amount equal to
(A) one-half ( 1 / 2
) of the Executive’s
Annual Cash Compensation, to be paid in equal installments on the
Company’s regular pay dates for six (6) months following
termination of the Executive’s employment by the Company
(subject to customary withholding and payroll taxes and early
termination upon the Executive’s employment with a new
employer); plus continuation of all benefits at the level
then offered to and enrolled in by the Executive, until the earlier
of (x) six (6) months following the termination of the
Executive’s employment by the Company or (y) the date
that the Executive is eligible to receive coverage and benefits
from a new employer; and (B) thereafter, for every
twelve-month period from the date of the Executive’s original
date of hire on January 2, 2000 that the Executive has been
continuously employed by the Company, the Executive shall receive
one (1) additional month of severance pay (i.e., an additional
one-twelfth ( 1 / 12
) of the Executive’s
Annual Cash Compensation) up to a total of twelve (12) months
of severance (i.e., up to an amount not to exceed one (1) year
of the Executive’s Annual Cash Compensation), plus
continuation of all benefits at the level then offered to and
enrolled in by the Executive, to be paid in equal installments over
the then applicable period following termination of the
Executive’s employment by the Company on the Company’s
regular pay dates (subject to customary withholding and payroll
taxes and early termination upon the Executive’s employment
with a new employer).
For purposes of this Agreement,
“ Annual Cash Compensation ” shall mean the sum
of (a) the highest annual Base Salary in effect for the
Executive and (b) the greater of (i) the
Executive’s last year’s bonus, if any, or (ii) the
annualized amount of the Executive’s current year’s
target bonus; provided , however , neither clause
(i) nor (ii) shall exceed fifty percent (50%) of the
Executive’s current annual Base Salary.
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(c)
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If the
Executive’s employment is terminated b
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