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EXHIBIT 10.75
EMPLOYMENT EVALUATION AGREEMENT
THIS EMPLOYMENT EVALUATION AGREEMENT is made and entered into as of
July 15, 1998 by and between AMERICAN HOMEPATIENT, INC., a Delaware corporation
(the "Company"), and XXXXX X. XXXXX, a resident of Tennessee and the Chief
Operating Officer of the Company (the "Employee").
WHEREAS, the Company is currently employing the Employee, directly or
indirectly through an affiliate, on an "at-will" basis; and
WHEREAS, the Company and Employee are parties to that certain
Confidentiality, Non-Competition and Severance Pay Agreement dated as of June
16, 1996 (the "1996 Contract"); and
WHEREAS, both the Company and Employee are interested in exploring the
possibility of Employee remaining in the employ of the Company as its Chief
Operating Officer pursuant to an employment agreement and wish to ensure orderly
continuity of management of the Company while this possibility is explored.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the receipt and sufficiency of which are hereby acknowledged,
the parties, intending to be legally bound hereby, agree as follows:
1. EMPLOYEE NOTICE. Within thirty (30) days of the date of this
Agreement, or until such later date as mutually agreeable to the Company and
Employee (such period to be known as the "Notice Period"), the Employee will
deliver a written notice to the Company (the "Notice"), which Notice will
clearly state whether Employee desires to proceed with negotiation of a
long-term employment agreement with the Company. Such Notice will be deemed
delivered when personally delivered to the Company at its Brentwood, Tennessee
corporate office so long as such Notice is directed to the attention of the
Company's President and Chief Executive Officer. In the event such Notice
evidences Employee's desire not to proceed with negotiation of a long-term
employment agreement, the Company's employment of Employee will terminate on
November 25, 1998.
2. NEGOTIATION. If the Notice evidences Employee's desire to proceed
with negotiation of a long-term employment agreement, each of the Employee and
the Company will use good faith efforts to enter into such an agreement. In the
event a mutually-agreeable employment agreement is not executed and delivered by
both the Company and the Employee by November 25, 1998, then Employee's
employment will terminate.
3. DUTIES. For so long as Employee's employment with the Company
continues and this Agreement remains in effect, the Employee will continue to
serve as Chief Operating Officer of the Company and will perform all duties and
responsibilities commensurate with such office.
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Employee agrees to devote his full time, attention and skills to such duties and
to use his best efforts to attain or exceed the Company's objective goals for
profit, quality, stability and growth. The Employee will at all times while
employed with the Company comply fully with the Company's "Guidelines of Company
Policies and Conduct" and any other compliance program, as such programs may be
amended from time to time, and acknowledges that his obligations under such
programs as an employee are contractual in nature. While serving as the
Company's Chief Operating Office, the Employee will continue to receive his
customary compensation as adjusted for merit increase, including base salary and
benefits, including car allowance to which he is entitled as of the date hereof.
4. SEVERANCE PAY. In the event Employee's employment with the Company
is terminated pursuant to either paragraph 1 or 2 of this Agreement and not as a
result of any breach by Employee hereunder, Employee will be entitled to receive
as a severance payment in a lump sum upon such termination an amount equal to
his current annual base salary, which is One Hundred Seventy Thousand and No/100
Dollars ($170,000.00) as adjusted for merit increase. In addition, the Company
will pay the Employee any earned but unpaid base salary and the Company will
continue, for twelve (12) months following such termination, all employee
benefits including car allowance to which Employee was entitled immediately
prior to termination.
5. RELEASE; COVENANT NOT TO XXX. Employee hereby fully and forever
releases the Company, its successors and assigns, affiliates, insurers,
officers, directors, employees and agents, from any and all liability, causes of
action, suits, damages, claims and demands whatsoever that Employee may have and
that arise from or relate in any way to his employment with the Company or the
conduct of the Company's business prior to the date hereof. Employee hereby
covenants that he will not initiate or bring any proceeding, suit or claim
against the Company, its successors and assigns, affiliates, officers,
directors, employees or agents arising out of or in any way related to his
employment by the Company or the conduct of the Company's business prior to the
date hereof.
6. RIGHTS AND OBLIGATIONS OF EMPLOYEE. The rights and obligations of
Employee hereunder are not assignable or delegable, and any prohibited
assignment or delegation will be null and void. The Company may assign and/or
delegate this Agreement. The provisions hereof will inure to the benefit of and
be binding upon the permitted successors and assigns of the respective parties.
7. GOVERNING LAW. This Agreement will be governed by the substantive
laws of the State of Tennessee.
8. EXCLUSIVENESS. This Agreement constitutes the entire understanding
and agreement between the parties with respect to the negotiation of an
employment agreement. Notwithstanding the foregoing, this Agreement is subject
to the Guidelines of Company Policies and Conduct and any other compliance
programs of the Company (as referenced in Section 3), and does not supercede the
1996 Contract.
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9. MODIFICATION. This Agreement may not be modified or amended except
in a writing signed by both the Company and the Employee. No term or condition
of this Agreement will be deemed have been waived except pursuant to a written
instrument executed by the party charged with waiver. A waiver will operate only
as to the specific term or condition waived and will not constitute a waiver for
the future or act on anything other than that which is specifically waived.
10. INVALIDITY. The invalidity of any provision of this Agreement will
not affect any other provision hereof, and this Agreement will be construed in
all respects as if such invalid provision was omitted. Further, in lieu of such
invalid provision, there will be automatically added as a part of this Agreement
a provision as similar in terms to such invalid provision as may be possible
which substitute provision will be valid and enforceable.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original but all of which together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Employment
Evaluation Agreement as of the date first above written.
"COMPANY"
AMERICAN HOMEPATIENT, INC., a
Delaware corporation
By: /s/ Xxxxxxx XxxXxxxxx
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Title: President and Chief Executive Officer
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"EMPLOYEE"
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
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