EXHIBIT 10.10
EMPLOYMENT AGREEMENT
(Location Specific)
DATE: March 1, 1999 ("Commencement Date")
PARTIES: JAMES W. CRUCKSHANK ("Executive")
ASSISTED LIVING CONCEPTS, INC., on ("Company")
behalf of itself and its Affiliated Companies
11835 NE Glenn Widing Drive, Building E
Portland, Oregon 97220
1. Services.
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1.1 Employment. Effective on the Commencement Date, Assisted Living
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Concepts, Inc. ("ALC") or one of its Affiliated Companies (defined below) hereby
agrees to employ Executive, and Executive hereby agrees to serve the Company, on
the terms and conditions of this Agreement. Such employment shall be for the
initial term of two (2) years, with an automatic rollover at the end of each
year from and after the Commencement Date for an additional year unless
terminated by the Company by its providing written notice of such termination to
Executive within ninety (90) days prior to the anniversary of the Commencement
Date (in which event Executive shall have one year remaining until the
termination of this Agreement, unless terminated earlier pursuant to Section 6
hereunder). For example, in the event that Executive were an employee of the
Company on March 15, 2000 and the Company were not to have provided written
notice to Executive between December 15, 1999 and March 15, 2000 that
Executive's employment would terminate on March 15, 2001, then the term of this
Agreement would automatically rollover an additional year to March 15, 2002 from
March 15, 2001. On the other hand, if the Company were to provide written
notice to Executive of the termination of this Agreement within 90 days prior to
the anniversary date of March 15, 2000, then this Agreement would terminate on
March 15, 2001 (unless terminated earlier pursuant to Section 6 hereunder), and
there would be no automatic rollover.
For purposes of this Agreement, "Affiliated Companies" shall mean an entity
controlling, controlled by, or under common control with ALC, and shall include
a corporation which acquires the stock of ALC, should a merger occur.
1.2 Position and Duties. Executive shall serve as the Vice President and
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Chief Financial Officer with such powers and duties appropriate to that position
as may be provided by the Bylaws of the Company and as may be determined by the
Chief Executive Officer (or, if none, the President) of the Company from time to
time. Executive's position and duties may change during the term of this
Agreement; provided, however, that the position and duties shall not diminish in
scope.
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1.3 Outside Activities. Executive shall obtain the prior written consent
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of the Board of Directors prior to Executive engaging in any other professional
or business activities, directly or indirectly, that may require a material
amount of Executive's time or effort to the detriment of the Company's business.
Such consent will not be unreasonably withheld.
1.4 Direction of Services. Executive shall at all times discharge
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Executive's duties in consultation with and under the supervision and direction
of the Company's Chief Executive Officer and President, or any duly designated
representative of either of them if such offices are held by different
individuals.
2. Compensation and Expenses.
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2.1 Salary. As compensation for services under this Agreement, the Company
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shall pay to Executive an annual salary to be established each calendar year by
the Chief Executive Officer (or, if there is no Chief Executive Officer, the
President) in consultation with the Board of Directors of the Company. Such
salary may be adjusted from time to time unless the Board of Directors in its
discretion determines not to do so, but in no event will an adjustment result in
a salary less than the initial annual salary in the amount of One Hundred Fifty
Thousand Dollars ($150,000). Payment shall be made on a bi-weekly basis or other
basis as may be implemented for general payroll purposes, less all amounts
required by law to be withheld or deducted.
2.2 Stock Options. The Company shall grant Executive the option to
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purchase 30,000 shares of Company common stock to vest as follows:
10,000 on March 15, 2000
10,000 on March 15, 2001
10,000 on March 15, 2002
2.3 Company Incentive Bonus Plan. After six (6) full months of employment
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with the Company, Executive shall be eligible to participate in the Company's
Incentive Bonus Plan for 1999 and in any future bonus plan, the criteria of
which shall be determined in the sole discretion of the Board of Directors. For
the calendar year 1999, the Incentive Bonus Plan is based upon: (i) the Company
meeting its performance goals; and (ii) Executive meeting the goals established
for Executive. The maximum amount of such bonuses for any employee employed the
full calendar year of 1999 is 20% of an employee's annual salary or, up to 10%
based upon employee's performance and up to 10% based on the Company's
performance. In the event an employee is eligible to participate in the Plan
during only the last three months of 1999, then the maximum amount of an
employee's bonus would be 20% of the amount of employee's salary for 3 months.
2.4. Expenses. Executive shall be reimbursed for Executive's travel
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expenses incurred in connection with Executive's employment according to the
policies and procedures in effect when incurred.
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2.5 Benefits. Executive and Executive's immediate family (if benefit is
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generally available to Executive's family members) shall have the right to
receive or participate in any of the Company's benefit programs, including
without limitation, group medical (with Executive and Executive's spouse's cost
of the Company's medical benefit program paid in full), dental, life, AD&D and
LTD on the first of the next month following ninety (90) days of employment with
the Company.
2.6 Paid Time Off. Executive shall be entitled to four (4) weeks of Paid
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Time Off per year of employment with the Company. Executive shall have the right
to carry over one quarter of Paid Time Off which accrued but was unused during
the prior calendar year.but was unused during the prior calendar year. No
compensation will be paid for accrued Paid Time Off which was not taken. For the
year 1999, Paid Time Off shall be prorated according to time actually employed.
2.7 Other. Executive's car allowance shall be in the amount of $500 per
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month.
3. Confidential Information.
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3.1 Access to Information. Executive acknowledges that in the course of
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Executive's employment, Executive will have access to proprietary information,
trade secrets, and other confidential information, that such information is a
valuable asset of the Company, and that its disclosure or unauthorized use will
cause the Company substantial harm. As used in this Agreement, the term
"Confidential Information" shall mean: (a) proprietary information and trade
secrets of the Company and (b) information designated by the Company as
confidential or which Executive knows or should know is confidential.
3.2 Ownership. Executive acknowledges that all Confidential Information
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shall continue to be the exclusive property of the Company, whether or not
prepared in whole or in part by Executive and whether or not disclosed to
Executive or entrusted to Executive's custody in connection with Executive's
employment by the Company.
3.3 Nondisclosure and Nonuse. Unless authorized or instructed in writing
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by the Company, or required by legally constituted authority, Executive will
not, except as required in the course of the Company's business, during or after
Executive's employment, disclose to others or use any Confidential Information,
unless and until, and then only to the extent that, such items become available
to the public other than by Executive's act or failure to prevent accidental or
negligent loss or release to any unauthorized person of the Confidential
Information.
3.4 Return of Confidential Information. Upon request by the Company during
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or after Executive's employment, and without request upon termination of
employment pursuant to this Agreement, Executive will deliver immediately to the
Company all Confidential Information of the Company; Executive will retain no
excerpts, notes, or copies thereof, whether on disk for computer use or in any
other form.
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3.5 Duration. The obligations set forth in this Section 3 shall survive
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the expiration or earlier termination of this Agreement and shall terminate at
such time as Executive no longer possesses Confidential Information.
4. Work Made for Hire. Executive agrees that all creative work, including
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without limitation, techniques, models, and processes, prepared or originated by
Executive for the Company, or during or within the scope of employment by the
Company, whether or not subject to protection under applicable law, constitutes
work made for hire, all rights to which are owned by the Company, Executive
assigns to the Company all rights, title, and interest, whether by way of
copyright, trade secret, or otherwise, in all such work, whether or not subject
to protection by copyright or other law. EXECUTIVE ACKNOWLEDGES AND AGREES THAT
ANY ONE OR MORE ENTITIES CONSTITUTING "COMPANY" UNDER THIS AGREEMENT SHALL BE
ENTITLED TO THE BENEFIT OF THE PROVISIONS OF THIS SECTION 4.
5. Noncompetition.
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5.1 Covenant. Executive covenants that in the states in which Affilated
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Companies are doing business, Executive will not, either individually or as a
director, officer, partner, employee, agent, representative, or consultant with
any business, directly or indirectly during the term of employment with the
Company and for one year thereafter:
(a) Induce or attempt to induce any person who is an employee of the
Company during the term of this covenant to leave the employ of the
Company; or
(b) Induce or attempt to induce any person who is a tenant or
potential tenant (whether on a waiting list or simply a person who was
contacted by Executive or another agent of the Company in a marketing
effort or who contacted the Company regarding tenancy or whose family
member or agent contacted the Company) to leave the tenancy of a facility
or to select different residency, not under Company management; or,
(b) Solicit, divert, or accept orders from any customer of the Company
for products or services that are substantially competitive with the
products or services, if any, sold by the Company.
5.2 Enforcement.
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(a) Executive acknowledges and agrees that the time, scope, and other
provisions of this Section 5 have been specifically negotiated by
sophisticated parties having been advised to seek legal counsel and
Executive agrees that such time, scope, and other provisions are
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reasonable under the circumstances. Executive further agrees that if, at
any time, despite the express agreement of the parties hereto, a court of
competent jurisdiction holds that any portion of this Section 5 is
unenforceable for any reason, the maximum restrictions reasonable under
the circumstances, as determined by such court, will be substituted for
any such restrictions held unenforceable.
(b) EXECUTIVE ACKNOWLEDGES AND AGREES THAT ANY ONE OR MORE ENTITIES
CONSTITUTING "COMPANY" UNDER THIS AGREEMENT SHALL BE ENTITLED TO THE
BENEFIT OF THE PROVISIONS OF THIS SECTION 5.
6. Termination.
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6.1 Voluntary Resignation. Executive may terminate Executive's employment
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under this Agreement by 90 days written notice to the Company. In the event of
such voluntary resignation, this Agreement shall terminate as of the effective
date of resignation, and the Company shall have no obligation whatsoever to pay
any Severance Amount or any other amounts except as required by applicable law.
6.2 Termination by the Company.
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(a) With Cause. The Company may terminate Executive's employment under
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this Agreement immediately with cause by notice to Executive. In the event
Executive is terminated pursuant to the provisions of this Section 6.2(a),
the Company shall have no obligation whatsoever to pay any Severance
Amount or any other amounts except as required by applicable law. Specific
examples of events that warrant termination for cause include, but are not
limited to: (i) Executive's material failure to perform Executive's
duties; (ii) Executive's failure to act in a professional manner if such
failure causes material damage to the Company; (iii) Executive's breach of
this Agreement; or (iv) Executive's engaging in fraud, breach of fiduciary
duty, or any other act of similar willful misconduct or gross negligence
in the performance of Executive's duties on behalf of the Company.
(b) Without Cause. In the event of the termination of the employment
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of Executive by the Company without cause and without the Company offering
Comparable Employment (defined below) prior to the expiration hereof,
Executive shall be paid an amount equal to that set forth in Schedule
6.2(b), which is attached hereto and incorporated herein by this reference
(the "Severance Amount"), subject to the condition set forth in Section
6.4 below. Such Severance Amount shall be paid in a lump sum within 60
days after the effective date of the termination of employment. In the
event Executive is offered Comparable Employment, whether or not Executive
accepts such offer, then the Company shall have
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no obligation whatsoever to pay the Severance Amount. In the event,
Executive is offered and accepts a position with the Company which is
Comparable Employment, this Agreement shall remain in full force and
effect until its expiration or earlier termination after such change to
Comparable Employment. "Comparable Employment" shall mean employment with
ALC or an Affiliated Company in a position that is with one or more
entities constituting "Company" under this Agreement and is: (i) not
materially different in level of responsibility or duties; (ii) at the
same or higher salary level and benefits; (iii) with the same or similar
title or rank; and (iv) which is to be based within a 20-mile radius of
the location of Executive's immediately prior position with the Company.
6.3 Death. This Agreement shall terminate immediately upon Executive's
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death, and the Company shall have no obligation to pay the Severance Amount in
such event.
6.4 Condition to Severance Payments.
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(a) As a condition precedent to the Company's obligation to pay the
Severance Amount, Executive shall sign, deliver, and abide by a Separation
Agreement and Release, substantially in the form attached hereto as
Exhibit A to this Agreement. The Company's obligation to pay the Severance
Amount shall terminate if Executive is in violation of the provisions of
Section 5 of this Agreement.
(b) EXECUTIVE ACKNOWLEDGES AND AGREES THAT "COMPANY" FOR THE PURPOSES
OF THE RELEASE CONTEMPLATED BY SECTION 6.4(a) COULD INCLUDE ONE OR MORE OF
ALC AND THE AFFILIATED COMPANIES DURING THE TERM OF THIS AGREEMENT AND
THAT EACH SUCH ENTITY SHALL SEPARATELY BE ENTITLED TO THE BENEFIT OF THE
RELEASE CONTEMPLATED IN SECTION 6.4(a).
7. Remedies. The respective rights and duties of the parties under this
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Agreement are in addition to, and not in lieu of, those rights and duties
afforded to and imposed upon them by law or at equity. Executive acknowledges
that breach of Sections 3 and 5 of this Agreement will cause irreparable harm to
the Company and agrees to the entry of a temporary restraining order and
permanent injunction by any court of competent jurisdiction to prevent breach or
further breach of this Agreement. Such remedy shall be in addition to any other
remedy available to Company at law or in equity.
8. Severability of Provisions. The provisions of this Agreement are
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severable, and if any provision hereof is held invalid or unenforceable, it
shall be enforced to the maximum extent permissible, and the remaining
provisions of the Agreement shall continue in full force and effect.
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9. Attorney Fees. In the event a suit or action is filed to enforce Sections
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3 and 5 of this Agreement, the prevailing party shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action
including, without limitation, reasonable attorneys fees at trial, on appeal and
otherwise.
10. Nonwaiver. Failure of the Company at any time to require performance of
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any provision of this Agreement shall not limit the right of the Company to
enforce the provision. No provision of this Agreement or breach thereof may be
waived by either party except by a writing signed by that party. A waiver of
any breach of a provision of this Agreement shall be construed narrowly and
shall not be deemed to be a waiver of any succeeding breach of that provision or
a waiver of that provision itself or of any other provision.
11. Arbitration.
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11.1 Claims Covered. All claims or controversies ("Claim" or "Claims"),
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(except for those expressly excluded by Section 11.2, whether or not arising out
of Executive's employment or its termination) that Company may have against the
Executive or that Executive may have against the Company or against its
officers, directors, employees or agent, in their capacity as such or otherwise,
shall be resolved by arbitration, as provided in this Section 11. Claims
covered by this agreement to arbitration shall include, without limitation,
claims for wages or other compensation due; claims for breach of any contract or
covenant (express or implied); tort claims; claims for discrimination
(including, but not limited to, race, sex, sexual orientation, religion,
national origin, age, marital status, or medical condition, handicap or
disability); claims for benefits (except where an employee benefit or pension
plan specifies that its claims procedure shall culminate in an arbitration
procedure different from this one); and, claims for violation of any federal,
state, or other governmental law, statute, regulation, or ordinance, except as
otherwise provided in Section 11.2.
11.2 Non-covered Claims. Claims arising out of Sections 3 and 5 of this
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Agreement and workers compensation or unemployment compensation benefits are not
covered by the parties' agreement to arbitrate. Non-covered claims include,
without limitation, claims by the Company for injunctive and/or other equitable
relief for unfair competition and/or the use and/or unauthorized disclosure of
trade secrets or confidential information, about which Executive understands and
agrees that the Company may seek and obtain relief from a court of competent
jurisdiction.
11.3 Required Notice of All Claims and Statute of Limitations. Company and
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Executive agree that the aggrieved party must give written notice of any Claim
to the other party within one year of the date the aggrieved party first has
knowledge of the event giving rise to the Claim. Failure to provide such notice
shall result in the Claim being void and deemed waived, even if there is a
federal or state statute of limitations which would have given more time to
pursue the Claim. The written notice shall identify and describe the nature of
all Claims asserted and the facts upon which such Claims are based.
11.4 Hearing or Mediation. Prior to any arbitration proceeding taking
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place
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pursuant to this Section, Company or Executive may elect to submit the
Claim to non-binding mediation before a mutually agreeable mediation tribunal or
mediator, in which event both parties and the mediator shall execute a
reasonable confidentiality agreement and abide by the procedures specified by
the mediation tribunal or mediator.
11.5 Arbitration Procedures. Any arbitration shall be conducted in
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accordance with the then-current Model Employment Arbitration Procedures of the
American Arbitration Association ("Model Rules"), through the United States
Arbitration and Mediation Service ("USA&MS"), before an arbitrator who is
licensed to practice law in the State of Oregon (the "Arbitrator"). Because
USA&MS shall be the arbitration service, where the Model Rules reference the
"American Arbitration Association," "USA&MS" shall be inserted instead. The
arbitration shall take place in or near Portland, Oregon.
(a) Selection of Arbitrator. The USA&MS shall give each party a
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list of 11 arbitrators drawn from its panel of labor-management dispute
arbitrators. Each party may strike all names on the list it deems
unacceptable. If only one common name remains on the lists of all parties,
that individual shall be designated as the Arbitrator. If more than one
common name remains on the lists of all parties, the parties shall strike
names alternately until only one remains. The party who did not initiate
the claim shall strike first. If no common name remains on the lists of
all parties, the USA&MS shall furnish an additional list or lists until an
Arbitrator is selected.
(b) Applicable Law. The Arbitrator shall apply the substantive
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law (and the law of remedies, if applicable) specified in this Agreement
or federal law, or both, as applicable to the Claim(s) asserted. The
Oregon Rules of Evidence shall apply. The Arbitrator, and not any federal,
state, or local court or agency, shall have exclusive authority to resolve
any dispute relating to the interpretation, applicability, enforceability
or formation of this Agreement, including but not limited to any assertion
that all or any part of this Agreement is void or voidable. The
arbitration shall be final and binding upon the parties, except as
provided in this Agreement.
(c) Authority. The Arbitrator shall have jurisdiction to hear
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and rule on pre-hearing disputes and is authorized to hold pre-hearing
conferences by telephone or in person as the Arbitrator deems necessary.
The Arbitrator shall have the authority to entertain a motion to dismiss
and/or a motion for summary judgment by any party and shall apply the
standards governing such motions under the Federal Rules of Civil
Procedure. The Arbitrator shall render an award and opinion in the form
typically rendered in labor arbitrations.
(d) Representation. Each party may be represented by an attorney
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or other representative selected by that party.
(e) Discovery. Each party shall have the right to take the
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deposition of one individual and any expert witness designated by the
other party.
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Each party also shall have the right to make requests for production of
documents to the other party. The subpoena right specified below shall be
applicable to discovery pursuant to this subsection (e). Additional
discovery may be had only where the Arbitrator selected pursuant to this
Agreement so orders, upon a showing of substantial needs. At least 30 days
before the arbitration proceeding, the parties shall exchange lists of
witnesses, including naming experts, and provide copies of all exhibits
intended to be used at the arbitration proceeding. Each party shall have
the right to subpoena witnesses and documents for such proceeding.
(f) Reporter. Either party, at its expense, may arrange for and
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pay the cost of a court reporter to provide a stenographic record of the
proceeding.
(g) Post-Proceeding Briefs. Either party, upon request at the
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close of hearing, shall be given leave to file a post-hearing brief. The
time for filing such a brief shall be set by the Arbitrator.
11.6 Enforcement. Either party may bring an action in any court of
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competent jurisdiction to compel arbitration under this Agreement and to enforce
an arbitration award. Except as otherwise provided in this Agreement, both the
Company and Executive agree that neither shall initiate or prosecute any lawsuit
or administrative action (other than for a non-covered claim) in any way related
to any Claim covered by the parties' agreement to arbitrate. A party opposing
enforcement of an award may not do so in an enforcement proceeding, but must
bring a separate action in any court of competent jurisdiction to set aside the
award, where the standard of review will be the same as that applied by an
appellate court reviewing a decision of a trial court sitting without a jury.
11.7 Arbitration Fees and Costs. Company and Executive shall equally
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share the fees and costs of the Arbitrator. Each party will deposit funds or
post other appropriate security for its share of the Arbitrator's fee, in an
amount and manner determined by the Arbitrator, at least ten (10) days prior to
the first day of the proceeding. Each party shall pay for its own costs and
attorneys fees, if any; provided, however, that the Arbitrator, in that person's
sole discretion, may award reasonable fees to the prevailing party in the
proceeding.
11.8 Waiver of Jury Trial. BY AGREEING TO SUBMIT A DISPUTE TO
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ARBITRATION, THE PARTIES HERETO UNDERSTAND THAT THEY WILL NOT ENJOY THE BENEFITS
OF A JURY TRIAL. ACCORDINGLY, THE PARTIES HERETO EXPRESSLY AGREE TO WAIVE THE
RIGHT TO A JURY TRIAL.
11.9 Benefit. EXECUTIVE ACKNOWLEDGES AND AGREES THAT "COMPANY" FOR
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THE PURPOSES OF THE PROVISIONS OF THIS SECTION 12 COULD INCLUDE ONE OR MORE OF
ALC AND THE AFFILIATED COMPANIES DURING THE TERM OF THIS AGREEMENT AND THAT EACH
SUCH ENTITY SHALL SEPARATELY BE ENTITLED TO THE BENEFITS OF THIS SECTION.
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12. General Terms and Conditions. The parties acknowledge that the
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Company is engaged in transactions involving interstate commerce and that
Executive's employment involves such commerce. This Agreement and that certain
offer letter from ALC, dated February 3, 1999, (which is attached hereto and
incorporated herein by this reference) as accepted by Executive on February 4,
1999, shall constitute the final and entire understanding of the parties
relating to the employment of Executive, and supersedes and replaces all written
and oral agreements heretofore made or existing by and between the parties
relating thereto. In the event of any inconsistency between the terms of this
Agreement and the offer letter, this Agreement shall prevail. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Oregon, without regard to the conflicts of laws rules thereof, and all disputes
relating to this Agreement (which are not subject to arbitration under Section
11) shall be tried before a state or federal court sitting in Multnomah County,
to the exclusion of all courts which might have jurisdiction apart from this
provision. This Agreement shall inure to the benefit of any successors or
assigns of the Company.
[signatures on the following page]
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IN WITNESS HEREOF, the parties have executed this Employment Agreement as
of the date below written to be effective on the Commencement Date hereof.
EXECUTIVE ASSISTED LIVING CONCEPTS, INC., on
behalf of itself and its Affiliated
Companies
__________________________________ ____________________________________
James W. Cruckshank Keren Brown Wilson
Vice President and Chief Financial Chief Executive Officer and President
Officer
Date: ___________________________ Date: ______________________________
Work Location - Present Address:
11835 N.E. Glenn Widing Drive, Building E
Portland, OR 97220-9057
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT
FORM OF SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is made and entered into
as of this _____ day of ______________,______, by and between Assisted Living
Concepts, Inc. and one or more of its Affiliated Companies (collectively,
"Company"), and ______________________ ("Executive") in order to provide the
terms and conditions of Executive's termination of employment, to fully and
completely resolve any and all issues that Executive may have in connection with
[HIS/HER] employment with Company or the termination of that employment, and to
promote an amicable long-term relationship between Company and Executive.
In consideration of the mutual promises and conditions contained herein, the
parties agree as follows:
1. Separation. Executive has been [is currently] employed at Company
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as Executive. Executive shall have no further job responsibilities at Company
after --------------, and [his/her] employment shall be terminated effective as
of such date.
2. Payment to Executive. Pursuant to the Employment Agreement entered into
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between the parties, Company agrees to provide additional compensation to
Executive in the amounts set forth in the Employment Agreement provided
Executive executes and does not revoke this Agreement.
3. Release of Claims. In return for the benefits conferred by this
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Agreement (and described in the Employment Agreement), which Executive
acknowledges Company has no legal obligation to provide if Executive does not
enter into this Agreement, Executive, on behalf of [HERSELF/HIMSELF] and
[HER/HIS] heirs, executors, administrators, successors and assigns, hereby
releases and forever discharges Company and its past, present and future
affiliates, subsidiaries, predecessors, successors and assigns, and each of
their past, present and future shareholders, officers, directors, Executives,
agents and insurers, from any and all claims, actions, causes of action,
disputes, liabilities or damages, of any kind, which may now exist or hereafter
may be discovered, specifically including, but not limited to, any and all
claims, disputes, actions, causes of action, liabilities or damages, arising
from or relating to Executive's employment with Company, or the termination of
such employment, except for any claim for payment or performance pursuant to the
terms of this Agreement. This release includes, but is not limited to, any
claims that Executive might have for reemployment or reinstatement or for
additional compensation or benefits and applies to claims that [HE/SHE] might
have under either federal, state or local law dealing with employment, contract,
tort, wage and hour, or civil rights matters, including, but not limited to,
Title VII of the Civil Rights Act of 1964, the Age
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Discrimination in Employment Act, the Americans with Disabilities Act, the
Family and Medical Leave Act, similar state laws, and any regulations under such
laws. This release shall not affect any accrued rights Executive may have under
any medical insurance, workers' compensation or retirement plan because of
[HIS/HER] prior employment with Company. EXECUTIVE ACKNOWLEDGES AND AGREES THAT
THROUGH THIS RELEASE [HE/SHE] IS GIVING UP ALL RIGHTS AND CLAIMS OF EVERY KIND
AND NATURE WHATSOEVER, KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, THAT [HE/SHE]
MAY HAVE AGAINST COMPANY AND THE OTHER PERSONS NAMED ABOVE, EXCEPT FOR THE
RIGHTS SPECIFICALLY EXCLUDED ABOVE.
4. Confidentiality. Executive agrees to keep this Agreement and
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each of its terms, specifically including without limitation the amount of the
payment described in this Agreement, and the fact that [HE/SHE] has received
payment, strictly confidential. Executive may disclose the terms of this
Agreement only to [HIS/HER] attorney or accountant, or as required by law.
Executive understands that Company may be required to publicly disclose the
terms of this Agreement.
5. Non-Disparagement. Executive shall not make any disparaging or
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derogatory remarks of any nature whatsoever about Company, its officers,
directors or Executives, or its services and/or products (if any), either
publicly or privately, unless required by law.
6. Non-Admission of Liability. This Agreement shall not be construed
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as an admission of liability or wrongdoing by Company. Neither this Agreement
nor any of its terms, provisions, or conditions constitute an admission of
liability or wrongdoing or may be offered or received in evidence in any action
or proceeding as evidence of an admission of liability or wrongdoing.
7. Employment Agreement. Executive acknowledges and reaffirms
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[HIS/HER] obligations under Sections 3 and 5 of the Employment Agreement
executed by [HIM/HER] in conjunction with [HIS/HER] employment at Company. The
terms of such Employment Agreement are hereby incorporated herein and made a
part of this Agreement. Executive agrees to strictly comply with such terms of
the Employment Agreement.
8. Return of Property. Executive agrees to and hereby represents
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that [HE/SHE] has returned to Company all of Company's property and all
materials containing confidential information of Company, that were in [HIS/HER]
possession or under [HIS/HER] control.
9. Miscellaneous.
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9.1 Entire Agreement. This document constitutes the entire,
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final, and complete agreement and understanding of the parties with respect to
the subject matter hereof and supersedes and replaces all written and oral
agreements and understandings heretofore made or existing by and between the
parties or their representatives with respect thereto, other than the Employment
Agreement executed between the parties. There have been no representations or
commitments by Company to make any payment or perform any act other than
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those expressly stated herein.
9.2 Waiver. No waiver of any provision of this Agreement
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shall be deemed, or shall constitute a wavier of any other provision, whether or
not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the parties making the waiver.
9.3 Binding Effect. All rights, remedies, and liabilities
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herein given to or imposed upon the parties shall extend to, inure to the
benefit of and bind, as the circumstances may require, the parties and their
representative heirs, personal representatives, administrators, successors and
assigns.
9.4 Amendment. No supplement, modification or amendment of
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this Agreement shall be valid, unless the same is in writing and signed by
both parties.
9.5 Fees. If it becomes necessary to enforce this Agreement,
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or any part hereof, the prevailing party shall be entitled to recover its
reasonable attorney fees and costs incurred therein, including all
attorneys fees and costs on appeal.
9.6 Governing Law. This Agreement and the rights of the
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parties hereunder shall be governed, construed and enforced in accordance with
the laws of the state of Oregon, without regard to its conflict of law
principles. Any suit or action arising out of or in connection with this
Agreement, or any breach hereof, shall be brought and maintained in the Circuit
Court of the State of Oregon for the County of Multnomah. The parties hereby
irrevocably submit to the jurisdiction of such court for the purpose of such
suit or action and hereby expressly and irrevocably waive, to the fullest extent
permitted by law, any claim that any such suit or action has been brought in an
inconvenient forum.
9.7 Executive Given 21 Days to Consider Agreement. Executive
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acknowledges that Company advised [HIM/HER] in writing to consult with an
attorney before signing this Agreement and that [HE/SHE] has had at least
21 days to consider whether to execute this Agreement.
9.8 Revocation. Executive may revoke this Agreement by
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written notice delivered to the President or Chief Executive Officer of the
Company within seven days following the date [HE/SHE] signed the Agreement.
If not revoked under the preceding sentence, this Agreement becomes
effective and enforceable after the seven-day period has expired.
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EXECUTIVE ACKNOWLEDGES THAT [HE/SHE] HAS FREELY AND VOLUNTARILY EXECUTED THIS
AGREEMENT, WITH A COMPLETE UNDERSTANDING OF ITS TERMS AND PRESENT AND
FUTURE EFFECTS.
"EXECUTIVE" ASSISTED LIVING CONCEPTS, INC. on behalf of
itself, and the Affiliated Companies
______________________________ By: _______________________________
Title: ____________________________
Date:_________________________ Date:______________________________
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