Exhibit 10.1


 


AMENDED AND RESTATED


 


SEVERANCE AND NONCOMPETITION AGREEMENT


 


This SEVERANCE AND NONCOMPETITION AGREEMENT (“Agreement”),
originally made as of June 29, 2006  by and between
National Mentor Holdings, Inc., a Delaware corporation, (the “Company”),
and [NAME] (“Executive”), is hereby
amended and restated dated December 31, 2008 and effective January 1,
2009.


 


WHEREAS, an Agreement and Plan of Merger (the “Merger Agreement”)
was previously entered into by and among NMH Holdings, LLC, a Delaware limited
liability company (“Parent”), NMH Mergersub, Inc. a Delaware
corporation wholly owned by Parent, and National Mentor Holdings, Inc., a
Delaware corporation, pursuant to which the Company became a wholly owned
subsidiary of Parent;


 


WHEREAS, obtaining the Executive’s promise to be bound by the
restrictive covenants set forth in this Agreement was a significant factor in
the decision of the Parent to enter into the Merger Agreement, and in
connection therewith the restrictive covenants set forth in Section 3 of
this Agreement are necessary to protect the Parent’s and the Company’s
legitimate business interests;


 


WHEREAS, as consideration to induce the Executive to comply with the
restrictive covenants set forth in this Agreement, the Company shall continue
to employ Executive as an at-will employee and provide the severance payments
described in this Agreement; and


 


WHEREAS, the parties hereto have agreed
that it is mutually beneficial to amend and restate the Agreement effective January 1,
2009 to comply with the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”);


 


NOW THEREFORE, in consideration of the foregoing, and of mutual
covenants and agreements hereinafter set forth, and intending to be legally
bound, the parties hereto hereby agree as follows:


 


1.                                       Effective
Date of Agreement.  This Agreement
became effective as of the closing of the transactions contemplated under the
Merger Agreement, at the Effective Time (the “Effective Date”), and
shall remain in effect until terminated pursuant to Section 2, below; provided,
however, that the restrictive covenants contained in Section 3
below and all other provisions contained in this Agreement which by their terms
survive any termination of this Agreement shall remain in full force and effect
thereafter.


 


2.                                       Termination.


 


a.                                       For
purposes of this Agreement, the following terms shall have the respective
meanings set forth below:


 

















 


(i)          “Cause” shall mean: 
(A) the commission by the Executive of an act of fraud or embezzlement,
(B) the indictment or conviction of the Executive for (x) a felony or
(y) a crime involving moral turpitude or a plea by Executive of guilty or
nolo contendere involving such a crime (to the extent it gives rise to an
adverse effect on the business or reputation of the Company or any of its
subsidiaries), (C) the willful misconduct by the Executive in the
performance of Executive’s duties, including any willful misrepresentation or
willful concealment by Executive on any report submitted to the Company (or any
of its securityholders or subsidiaries) which is not of a de minimis nature, (D) the
violation by Executive of a written Company policy regarding substance abuse,
sexual harassment or discrimination policies or any other material written
policy of the Company regarding employment, (E) the willful failure of the
Executive to render services to the Company or any of its subsidiaries in
accordance with Executive’s employment which failure amounts to a material
neglect of the Executive’s duties to the Company or any of its subsidiaries, (F) the
repeated failure of the Executive to comply with reasonable directives of the
Board of Directors of the Company or the Chief Executive Officer of the Company
consistent with the Executive’s duties or (G) the material breach by
Executive of any of the provisions of any agreement between Executive, on the
one hand, and the Company or a securityholder or an affiliate of the Company,
on the other hand.  Notwithstanding the
foregoing, with respect to clauses (C), (D), (E), (F) and (G) above,
Executive’s termination of employment with the Company shall not be deemed to
have been terminated for Cause unless and until (X) Executive has been
provided written notice of the Company’s intention to terminate his employment
for Cause and the specific facts relied on, (Y) Executive has been
provided ten (10) business days from the receipt of such notice to cure
any such conduct or omission giving rise to a termination for Cause, and (Z) Executive
does not cure any such conduct or omission within such ten business-day period.


 


(ii)         “Code” shall mean the Internal Revenue Code of 1986,
as amended.


 


(iii)        “Disability” shall mean the inability of the Executive
to perform the essential functions of Executive’s job, with or without reasonable
accommodation, by reason of a physical or mental infirmity, for a continuous
period of six months.  The period of six
months shall be deemed continuous unless Executive returns to work for at least
30 consecutive business days during such period and performs during such period
at the level and competence that existed prior to the beginning of the
six-month period.  The date of such
Disability shall be on the first day of such six-month period.


 


(iv)        “Severance Termination” shall mean the termination of
Executive’s employment by the Company without Cause (other than by reason of
death or Disability) or the Executive’s termination of the employment
relationship for Good Reason.


 


(v)         “Good Reason” shall mean (A) a change by the
Company or NMH in Executive’s duties and responsibilities which is materially
inconsistent with Executive’s position in the Company or in NMH, (B) a
material reduction in Executive’s annual base salary or annual bonus
opportunity, provided that any reduction of up to ten percent (10%) of
Officer’s salary or bonus opportunity (in effect on June 29, 2006)  that is part of a plan to reduce
compensation of comparably situated employees of Company generally shall not be
considered a “material reduction in Officer’s annual base salary or annual
bonus opportunity” hereunder, (C) a 


 


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material breach by the Company of the
employment agreement, if any, between Executive and the Company or one of its
subsidiaries or (D) the relocation of the Executive’s principal place of
work from its current location to a location that is beyond a 50-mile radius of
such current location.   Notwithstanding
anything to the contrary in the foregoing, Executive shall only have “Good
Reason” to terminate employment if Executive gives notice, in writing, to the
Company of the act or omission which is alleged to constitute “Good Reason”
within ninety (90) days of the initial occurrence thereof, and Company fails to
remedy such act or omission within thirty (30) days following Company’s receipt
of written notice from Executive specifying such act or omission.


 


b.                                      Executive’s
employment may be terminated by the Company with or without Cause or any other
reason at any time upon written notice to Executive (in accordance with the
notice procedures of Section 8 and, in the event of a termination with
Cause, in a manner consistent with Section 2(a)(i)); provided, that
if such termination is by reason of Disability, such notice shall set forth in
reasonable detail the facts and circumstances alleged to provide a basis for
such termination.  Executive may
terminate his or her employment at any time with or without Good Reason or any
other reason upon thirty (30) days advance written notice to the Company (in
accordance with the notice procedures of Section 8).  Executive’s employment hereunder shall
automatically terminate upon the Executive’s death.


 


c.                                       With
respect to any termination of Executive’s employment hereunder, Executive shall
be entitled to receive any unpaid portion of his base salary, and any unused
vacation days accrued through the date of termination (which shall be paid in
accordance with the Company’s normal payroll practices, but in no event later
than 90 days following the Executive’s termination), together with such other
Company benefits, if any, accrued through the date of termination in accordance
with the applicable terms of the Company benefit plans.


 


d.                                      In
the event of a Severance Termination, subject to Section 2(e) and to
Executive’s continued compliance with the provisions of Section 3, the
Company shall:


 


(i)            Continue to pay Executive’s base salary (at a rate
in effect as of the date of the Severance Termination), in accordance with the
Company’s regular payroll practices, for a period of twelve months.  Such payments shall begin on the payroll date
next following Executive’s Severance Termination;


 


(ii)           Pay Executive an amount equal to the Executive’s
annual cash bonus earned by Executive in respect of the year prior to the year
in which such Severance Termination occurs. 
Such amount will be payable
in equal installments over a period of twelve months in accordance with
the Company’s regular payroll practices. Such payments shall begin on the
payroll date next following Executive’s Severance Termination; and


 


(iii)          For the one-year period beginning on the Executive’s
Severance Termination, permit the Executive to elect to participate, subject to
Executive’s continued payment to the Company of the “active employee” portion
of the plan premiums during such period, in any health, medical and welfare
benefit plans(s) maintained by the Company from time to time for the
Company’s similarly situated active employees, 


 


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provided that (i) Executive was participating in such plans at the
time of Executive’s Severance Termination, (ii) such plan(s) permit
continued participation by terminated employees and (iii) with respect to
any such plan subject to Consolidated Omnibus Budget Reconciliation Act of 1986
(“COBRA”), such coverage is co-extensive with COBRA and Executive makes a valid
election of continuation coverage under COBRA.


 


e.             Any termination of employment triggering payment of
benefits under this Agreement must constitute a “separation from service”
within the meaning of Treas. Reg. § 1.409A-1(h) before distribution
of such benefits can commence.  For
purposes of clarification, this paragraph shall not cause any forfeiture of
benefits on the part of the Executive, but shall only act as a delay until such
time as a separation from service occurs.


 


f.              Upon
any termination of Executive’s employment hereunder, Executive shall execute
and deliver to the Company a general release in form and substance reasonably
satisfactory to the Company releasing the Parent, the Company, its directors,
officers, agents and Executives of any form of liability, obligation, claim or
cause of action relating to Executive’s employment by the Company.  Such executed release must be received by the
Company no later than sixty (60) days following the date of the Executive’s “separation
from service” as described above.  If
such release is not received by such time, all severance payments set forth
herein shall by irrevocably forfeited by the Executive.


 


g.             If any amount to be paid to Executive pursuant to this
Agreement as a result of Executive’s termination of employment is “deferred
compensation” subject to Section 409A of the Code and the rules and
regulations thereunder and if the Executive is a “Specified Employee” (as
defined under Section 409A of the Code) as of the date of Executive’s
termination of employment hereunder, then, to the extent necessary to avoid the
imposition of excise taxes or other penalties under Section 409A of the
Code, the payment of benefits, if any, scheduled to be paid by the Company to
Executive hereunder during the first six (6) month period following the
date of a termination of employment hereunder shall not be paid until the date
which is the first business day following the six-month anniversary of Executive’s
termination of employment for any reason other than death.  Any deferred compensation payments delayed in
accordance with the terms of this paragraph shall be paid in a lump sum when
paid.


 


3.                                       Restrictive
Covenants.


 


a.                                       Confidentiality.


 


(i)          Executive will not at any time (whether during or after
Executive’s employment with the Company), other than in the ordinary course of
performing services for the Company, (x) retain or use for the benefit,
purposes or account of Executive or any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,
communicate, share, transfer or provide access to any Person outside the
Company (other than its professional advisers who are bound by confidentiality
obligations), any non-public, proprietary or confidential information obtained
by Executive in connection with the commencement of Executive’s employment with
the Company or at any time thereafter during the course of Executive’s
employment with the Company — including without limitation trade secrets,
know-how, research and development, 


 


4

















 


software, databases, inventions, processes,
formulae, technology, designs and other intellectual property, information
concerning finances, investments, profits, pricing, costs, products, services,
vendors, customers, clients, partners, investors, personnel, compensation,
recruiting, training, advertising, sales, marketing, promotions, government and
regulatory activities and approvals — concerning the past, current or future
business, activities and operations of the Company and/or any third party that
has disclosed or provided any of the same to the Company on a confidential
basis (provided that with respect to such third party Executive knows or
reasonably should have known that the third party provided it to the Company on
a confidential basis) (“Confidential Information”) without the prior written
authorization of the Board of Directors of the Company; provided, however, that
in any event Executive shall be permitted to disclose any Confidential
Information reasonably necessary (i) to perform Executive’s duties while
employed with the Company or (ii) in connection with any litigation or
arbitration involving this or any other agreement entered into between
Executive and the Company before, on or after the date of this Agreement in
connection with any action or proceeding in respect thereof.


 


(ii)         “Confidential Information” shall not include any information
that is (A) generally known to the industry or the public other than as a
result of Executive’s breach of this covenant or any breach of other
confidentiality obligations by third parties to the extent the Executive knows
or reasonably should have known of such breach by such third parties; (B) made
legitimately available to Executive by a third party (unless Executive knows or
reasonably should have known that such third party has breached any
confidentiality obligation); or (C) required by law or by any court,
arbitrator, mediator or administrative or legislative body (including any
committee thereof) with actual or apparent jurisdiction to order Executive to
disclose or make accessible any information; provided that, with respect to
clause (C) Executive, except as otherwise prohibited by law or regulation,
shall give prompt written notice to the Company of such requirement, disclose
no more information than is so required, and shall reasonably cooperate with any
attempts by the Company, at its sole cost, to obtain a protective order or
similar treatment prior to making such disclosure.


 


(iii)        Except as required by law or otherwise set forth in Section 3(ii) above,
or unless or until publicly disclosed by the Company, Executive will not
disclose to anyone, other than Executive’s immediate family and legal, tax or
financial advisors, the material provisions of this Agreement; provided that
Executive may disclose the provisions of this Agreement (A) to any
prospective future employer provided they agree to maintain the confidentiality
of such terms or (B) in connection with any litigation or arbitration
involving this Agreement.


 


(iv)        Upon termination of Executive’s employment with the Company
for any reason, Executive shall (A) cease and not thereafter commence use
of any Confidential Information or intellectual property (including without
limitation, any patent, invention, copyright, trade secret, trademark, trade
name, logo, domain name or other source indicator) if such property is owned or
used by the Company; (B) immediately destroy, delete, or return to the
Company, at the Company’s option, all originals and copies in any form or
medium (including memoranda, books, papers, plans, computer files, letters and
other data) in Executive’s possession or control (including any of the
foregoing stored or located in Executive’s office, home, laptop or other
computer, whether or not Company property) that contain Confidential 


 


5

















 


Information or otherwise relate to the
business of the Company, except that Executive may retain only those portions
of any personal notes, notebooks and diaries that do not contain Confidential
Information; and (C) notify and fully cooperate with the Company regarding
the delivery or destruction of any other Confidential Information of which
Executive is or becomes aware to the extent such information is in Executive’s
possession or control.  Notwithstanding
anything elsewhere to the contrary, Executive shall be entitled to retain (and
not destroy) information showing Executive’s compensation or relating to
reimbursement of expenses that Executive reasonably believes is necessary for
tax purposes and copies of plans, programs, policies and arrangements of, or
other agreements with, the Company addressing Executive’s compensation or
employment or termination thereof.


 


b.             Non-Competition;
Non-Solicitation; Non-Interference.


 


(i)                               Non-Competition.  During the term of Executive’s employment and
during the one year immediately following (x) the date of any termination
of Executive’s employment with the Company by the Company with or without Cause
and (y) if earlier than the date referenced in clause (x) hereof, the
date that notice is given by Executive to the Company of Executive’s
resignation from the Company for any reason (other than due to Executive’s
death) (such period, the “Restricted Period”), Executive will not, directly or
indirectly:


 


(A)          engage in any business that competes, wholly or in part, as
of the Relevant Date (as defined below), in the provision or sale of acquired
brain injury services, therapeutic foster care, other foster care or other home
or community-based healthcare, therapy, counseling or other educational or
human services to people with special needs, or any other business that the
Company is actively conducting or is actively considering conducting at the
time of Executive’s termination of employment (so long as Executive knows or
reasonably should have known about such plan(s)), in each case in any
geographical area within a 100 mile radius of the executive’s principle place
of work with the Company or its affiliates, as applicable (a “Competitive
Business”).  Notwithstanding the
foregoing, if Executive is subject to a more restrictive noncompetition
covenant in any agreement with the Company or any of its affiliates, the most
restrictive of such noncompetition covenants shall apply;


 


(B)           enter the employ of, or render any services to, any Person
(or any division or controlled or controlling affiliate of any Person) who or
which is a Competitive Business as of the date Executive enters such employment
or renders such services; or


 


(C)           acquire a financial interest in, or otherwise become
actively involved with, any Competitive Business which is a Competitive
Business as of the date of such acquisition or involvement, directly or
indirectly, as an individual, partner, shareholder, officer, director,
principal, agent, trustee or consultant.


 


(ii)                            Notwithstanding
the provisions of Section 3(b)(i)(A), (B) or (C) above, nothing
contained in Section 3(b)(i) shall prohibit Executive from (A) investing,
as a passive investor, in any publicly held company provided that Executive’s
beneficial ownership of any class of such publicly held company’s securities
does not exceed one percent (1%) of the outstanding securities of such class, (B) entering
the employ of any academic institution or 


 


6

















 


governmental or regulatory instrumentality of
any country or any domestic or foreign state, county, city or political
subdivision, or (C) providing services to a subsidiary or affiliate of an
entity that controls a separate subsidiary or affiliate that is a Competitive
Business, so long as the subsidiary or affiliate for which Executive may be
providing services is not itself a Competitive Business and Executive is not,
as an Executive of such subsidiary or affiliate, engaging in activities that
would otherwise cause such subsidiary or affiliate to be deemed a Competitive
Business.  For purposes of this Section 3(b),
the term “Relevant Date” shall mean, during the term of Executive’s
employment, any date falling during such time, and, for the period of time
during the Restricted Period that falls after the date of any termination of
Executive’s employment with the Company, the effective date of termination of
Executive’s employment with the Company.


 


(iii)                         Non-Solicitation
of Clients.  During the Restricted
Period, Executive will not, whether on Executive’s own behalf or on behalf of
or in conjunction with any Person, directly or indirectly solicit or assist in
soliciting the business of any client of the Company, in all such cases
determined as of the Relevant Date (collectively, the “Clients”):


 


(A)                              with
whom Executive had personal contact on behalf of the Company during the
one-year period immediately preceding Executive’s termination of employment;


 


(B)                                with
whom employees of the Company reporting to Executive have had personal contact
on behalf of the Company and about such contacts the Executive was aware during
the one-year period immediately preceding the Executive’s termination of
employment; or


 


(C)                                with
whom Executive had direct or indirect responsibility during the one-year period
immediately preceding Executive’s termination of employment.


 


(iv)                        Non-Interference
with Business Relationships.  During
the Restricted Period, Executive will not interfere with, or attempt to
interfere with, business relationships (whether formed before, on or after the
date of this Agreement) between the Company, on the one hand, and any Client,
customers, suppliers, partners, of the Company, on the other hand, in any such
case determined as of the Relevant Date.


 


(v)                           Non-Solicitation
of Employees; Non-Solicitation of Consultants. During the term of Executive’s
employment and during the Restricted Period, Executive will not, whether on
Executive’s own behalf or on behalf of or in conjunction with any Person,
directly or indirectly (other than in the ordinary course of Executive’s
employment with the Company on the Company’s behalf):


 


(A)                              solicit
or encourage any employee of the Company to leave the employment of the
Company; or


 


(B)                                hire
any such employee who was employed by the Company as of the date of Executive’s
termination of employment with the Company or who left the employment of the
Company coincident with, or within one year prior to or after, the termination
of Executive’s employment with the Company; or


 


7














 


(C)           solicit or encourage to cease to work with the Company any
consultant that Executive knows, or reasonably should have known, is then under
contract with the Company.


 


c.                                       It
is expressly understood and agreed that although Executive and the Company consider
the restrictions contained in this Section 3 to be reasonable, if a final
judicial determination is made by a court of competent jurisdiction that the
time or territory or any other restriction contained in this Agreement is an
unenforceable restriction against Executive, the provisions of this Agreement
shall not be rendered void but shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable (provided that in no event
shall any such amendment broaden the time period or scope of any restriction
herein).  Alternatively, if any court of
competent jurisdiction finds that any restriction contained in this Agreement
is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.


 


4.                                       Intellectual
Property.


 


a.                                       If
Executive has created, invented, designed, developed, contributed to or
improved any inventions, intellectual property, discoveries, copyrightable
subject matters or other similar work of intellectual property (including
without limitation, research, reports, software, databases, systems or
applications, presentations, textual works, content, or audiovisual materials)
(“Works”), either alone or with third parties, prior to or during Executive’s
prior and current employment with the Company, that are in connection with such
employment (“Prior Works”), to the extent Executive has retained or does retain
any right in such Prior Work, Executive hereby grants the Company a perpetual,
non-exclusive, royalty-free, worldwide, assignable, sublicensable license under
all rights and intellectual property rights (including rights under patent,
industrial property, copyright, trademark, trade secret, unfair competition and
related laws) therein to the extent of Executive’s rights in such Prior Work
for all purposes in connection with the Company’s current and future business.


 


b.                                      If
Executive creates, invents, designs, develops, contributes to or improves any
Works, either alone or with third parties, at any time during Executive’s
employment by the Company and within the scope of such employment and/or with
the use of any the Company resources (“Company Works”), Executive shall
promptly and fully disclose same to the Company and hereby irrevocably assigns,
transfers and conveys, to the maximum extent permitted by applicable law, and
at the Company’s sole expense, all rights and intellectual property rights
therein (including rights under patent, industrial property, copyright,
trademark, trade secret, unfair competition and related laws) to the Company to
the extent ownership of any such rights does not vest originally in the
Company.


 


c.                                       Executive
agrees to keep and maintain adequate and current written records (in the form
of notes, sketches, drawings, and any other form or media requested by the
Company) of all Company Works.  The
records will be available to and remain the sole property and intellectual
property of the Company at all times.


 


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d.                                      Executive
shall take all requested actions and execute all requested documents (including
any licenses or assignments required by a government contract) at the Company’s
expense (but without further remuneration) to assist the Company in validating,
maintaining, protecting, enforcing, perfecting, recording, patenting or
registering any of the Company’s rights in the Prior Works and Company Works as
set forth in this Section 4.  If the
Company is unable for any other reason to secure Executive’s signature on any
document for this purpose, then Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as Executive’s
agent and attorney in fact, to act for and in Executive’s behalf and stead to
execute any documents and to do all other lawfully permitted acts in connection
with the foregoing.


 


e.                                       Except
as may otherwise be required under Section 4(a) above, Executive
shall not improperly use for the benefit of, bring to any premises of, divulge,
disclose, communicate, reveal, transfer or provide access to, or share with the
Company any confidential, proprietary or non-public information or intellectual
property relating to a former employer or other third party which Executive
knows or reasonably should have known is confidential, proprietary or
non-public information or intellectual property of such third party without the
prior written permission of such third party. 
Executive hereby indemnifies, holds harmless and agrees to defend the
Company and its officers, directors, partners, Executives, agents and
representatives from any breach of the foregoing covenant.  Executive shall comply with all relevant policies
and guidelines of the Company, including regarding the protection of
confidential information and intellectual property and potential conflicts of
interest.  Executive acknowledges that
the Company may amend any such policies and guidelines from time to time, and
that Executive remains at all times bound by their most current version.


 


f.                                         The
provisions of Sections 4 and 5 shall survive the termination of Executive’s
employment for any reason.


 


5.                                       Specific
Performance.


 


a.                                       Executive
acknowledges and agrees that in the course of Executive’s employment with the
Company, Executive will be provided with access to Confidential Information,
and will be provided with the opportunity to develop relationships with
clients, prospective clients, employees and other agents of the Company, and
Executive further acknowledges that such confidential information and
relationships are extremely valuable assets of the Company in which the Company
has invested and will continue to invest substantial time, effort and expense.  Accordingly, Executive acknowledges and
agrees that the Company’s remedies at law for a breach or threatened breach of
any of the provisions of Section 3 or Section 4 would be inadequate
and, in recognition of this fact, Executive agrees that, in the event of such a
breach or threatened breach, in addition to any remedies at law, the Company,
without posting any bond, shall be entitled to cease making any payments or
providing any benefit otherwise required to be paid or provided by the Company
(other than any vested benefits under any retirement plan or as may otherwise
be required by applicable law to be provided) and seek equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available;
provided, however, that if it is subsequently determined in a final and binding
arbitration or litigation that Executive did not breach any such provision, the
Company will promptly pay any payments or provide any benefits, which the 


 


9

















 


Company may have ceased to pay when
originally due and payable, plus an additional amount equal to interest
(calculated based on the applicable federal rate for the month in which such
final determination is made) accrued on the applicable payment or the amount of
the benefit, as applicable, beginning from the date such payment or benefit was
originally due and payable through the day preceding the date on which such
payment or benefit is ultimately paid hereunder.


 


6.                                       Tax
Provisions.


 


All payments due to Executive hereunder shall be subject to all
applicable taxes required to be withheld by the Company pursuant to federal,
state or local law.  Executive shall be
solely responsible for income and earnings taxes imposed on Executive by reason
of any cash or non-cash compensation and benefits provided hereunder.  No person connected with this Agreement,
including but not limited to the Company, or its officers, directors, agents or
employees, makes any representation, commitment or guarantee with respect to
the Federal, state or local income, estate and/or gift tax treatment of any
benefit paid hereunder including, without limitation, under Section 409A
of the Code.


 


7.                                       Successors,
Binding Agreement Entire Agreement.


 


a.                                       This
Agreement shall not be assignable by the Executive.  This Agreement may be assigned by the Company
to any affiliate or to any other person that is a successor in interest to all
or substantially all of the business operations of the Company.


 


b.                                      This
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and respective successors, heirs and permitted assigns.


 


c.                                       This
Agreement sets forth the entire agreement and supersedes all prior agreements,
written or oral, between the parties with respect to the subject matter hereof.


 


8.                                       Notices.  For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered in person, on the
next business day when sent by overnight courier service, and on the date of
receipt when sent by postage prepaid mail with a return receipt requested, at
the following locations (or at such other location for a party as shall be
specified by like notice):


 


a.                                       If
to the Company, to:


 


National Mentor Holdings, Inc.


c/o Vestar Capital Partners


245 Park Avenue, 41st Floor


New York, NY  10167


Attn:  General Counsel


Telecopy:  (212) 808-4922


 


with a copy to:


 


National Mentor
Holdings, Inc.


 


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313 Congress
Street


Boston, MA
02210


Attn:  General Counsel


Telecopy:  (617) 790-4271


 


b.                                      If
to Executive:


 


To the most
recent address on file with the Company for the Executive.


 


9.                                       Amendments,
Modifications, Waivers.  No provision
of this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Executive and
the Company.  The failure of a party to
insist upon strict adherence to any term of the Agreement on any occasion shall
not be considered a waiver of such party’s rights or deprive such party of the
right thereafter to insist upon strict adherence to that term or any other term
of the Agreement.


 


10.                                 Severability
Inconsistent Provisions.


 


a.                                       If
any provision of this Agreement is held to be invalid, unenforceable or
inoperative, the remaining provisions hereof shall remain in full force and
effect and this Agreement shall be reformed so as to give the fullest possible
effect, consistent with applicable law, to the intent of the parties as set
forth herein.


 


b.                                      In
the event that any provision of any Executive benefit plan applicable to
Executive conflicts or is inconsistent with any provisions of this Agreement,
the provisions of such plan shall prevail and govern.


 


11.                                 Interpretation.


 


a.                                       The
parties hereto acknowledge and agree that: 
(i) each party hereto and its counsel reviewed and negotiated the
terms and provisions of this Agreement and have contributed to their revision
and (ii) the rule of construction to the effect that any ambiguities
are resolved against the drafting party shall not be employed in the
interpretation of this Agreement.  Unless
otherwise expressly provided herein, the words “include,” “includes” and “including”
do not limit the preceding words or terms and shall be deemed to be followed by
the words “without limitation.”  All
pronouns and any variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require. 
All terms defined in this Agreement in their singular or plural forms,
have correlative meanings when used herein in their plural or singular forms,
respectively.  The article and section
headings contained in this Agreement are solely for the purpose of reference,
are not part of the agreement of the parties and shall not in any way affect
the meaning or interpretation of this Agreement.


 


b.                                      The
Company will interpret, construe, and administer the Agreement in a manner that
satisfies the requirements of (a) Code § 409A(a)(2), (3) and
(4), (b) Treas. Reg. § 1.409A-1 et seq., and (c)  other
applicable authority issued by the Internal Revenue Service and the U.S.
Department of the Treasury.  In addition,
the parties shall cooperate fully with one another to ensure compliance with Section 409A
of the Code, including, without limitation, adopting amendments to arrangements
subject to Section 409A.


 


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12.                                 Governing
Law, Arbitration, etc.


 


a.                                       This
Agreement shall be governed in all respects, including as to validity,
interpretation and effect, by the internal laws of the Commonwealth of
Massachusetts applicable to contracts made and performed entirely within such
State.


 


b.                                      Except
as otherwise provided in Section 5, the parties hereto agree that any
disputes arising between them shall be submitted to binding arbitration in
Boston, Massachusetts, pursuant to the rules and procedures prescribed by
the American Arbitration Association (“AAA”) to resolve the dispute by
arbitration.


 


c.                                       The
parties hereby agree that the Company may bring any action seeking equitable
relief in respect of Executive’s agreements under Section 3 or Section 4
in the state or federal courts of the State of Massachusetts.  Each party irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to
the laying of the venue of any such action in any such court, any claim that
any such action brought in such a court has been sought in an inconvenient
forum and the right to object, with respect to any such action brought in any
such court, that such court does not have jurisdiction over such party.  In any such action, each party waives, to the
fullest extent it may effectively do so, personal service of any summons,
complaint or other process and agrees that the service thereof may be made by
certified or registered mail, addressed to such party at its address set forth
in Section 8 hereof.  Each party
irrevocably waives, to the fullest extent permitted by law, all rights to trial
by jury in any such action.


 


13.                                 Counterparts.  This Agreement may be executed (including by
facsimile transmission) in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.


 


[Signatures on next page.]


 


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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of December 31, 2008.


 


 


	
   

  	
   

  	
  NATIONAL MENTOR HOLDINGS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Edward M. Murphy

  
	
   

  	
   

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Executive:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME]

  



 


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