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EXHIBIT 10.27
RESIGNATION AND GENERAL RELEASE AGREEMENT
THIS RESIGNATION AND GENERAL RELEASE AGREEMENT (this
"AGREEMENT"), made as of the 7th day of November, 1997, by and between Xxxx X.
Xxxxxxxxxx, an individual ("XX. XXXXXXXXXX"), and APRIA HEALTHCARE GROUP INC., a
Delaware corporation ("APRIA"), is a resignation agreement which includes a
general release of claims. In consideration of the covenants undertaken and the
releases contained in this Agreement, Xx. Xxxxxxxxxx and Apria agree as follows:
1. Xx. Xxxxxxxxxx shall voluntarily resign from his position as an
employee of Apria and all of its affiliates and subsidiaries by executing
EXHIBIT A attached hereto, such resignation to be effective November 7, 1997.
2. Xx. Xxxxxxxxxx shall return to Apria and shall not take or copy in
any form or manner any financial information, lists of customers, prices, and
similar confidential and proprietary materials or information of Apria.
3. Apria shall pay to Xx. Xxxxxxxxxx the following amounts:
a. $168,050 in severance compensation, subject to standard
withholding for federal and state taxes, which shall be payable as follows.
On November 11, 1997, Apria shall make a lump-sum payment to Xx. Xxxxxxxxxx
of $56,000. The remaining $112,050 shall be payable in accordance with
Apria's regular payroll procedures in 26 substantially equal installments
over a 12-month period ending on the first regular payroll date after
November 11, 1998; and
b. All earned but unpaid vacation pay, and any salary amounts
earned but not yet paid, payable as promptly as practicable following
November 11, 1997.
4. Neither this Agreement nor anything in this Agreement shall be
construed to be or shall be admissible in any proceeding as evidence of an
admission by Apria or Xx. Xxxxxxxxxx of any violation of Apria's policies or
procedures, or state or federal laws or regulations. This Agreement may be
introduced, however, in any proceeding to enforce the Agreement. Such
introduction shall be pursuant to an order protecting its confidentiality.
5. Except for (i) those obligations created by or arising out of this
Agreement for which receipt or satisfac tion has not been acknowledged herein,
(ii) any rights Xx. Xxxxxxxxxx may have under stock option agreements with Apria
and any retirement, 401(k), SERP or similar benefit plans of Apria (including
the Abbey Healthcare Group Incorporated Employees' Retirement Plan), and (iii)
the continuing right to indemnification as provided by applicable law
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or in Apria's bylaws and articles of incorporation in connection with acts,
suits or proceedings by reason of the fact that he was an officer or employee of
Apria where the basis of the claims against him consists of acts or omissions
taken or made in such capacity, Xx. Xxxxxxxxxx on behalf of himself, his
descendants, dependents, heirs, executors, administrators, assigns, and
successors, and each of them, hereby covenants not to xxx and fully releases and
discharges Apria, and its predecessors, subsidiaries and affiliates, past and
present, and each of them, as well as its and their trustees, directors,
officers, agents, attorneys, insurers, employees, stockholders, representatives,
assigns, and successors, past and present, and each of them, hereinafter
together and collectively (including Apria) referred to as the "APRIA
RELEASEES," with respect to and from any and all claims, wages, demands, rights,
liens, agreements, contracts, covenants, actions, suits, causes of action,
obligations, debts, costs, expenses, attorneys' fees, damages, judgments, orders
and liabilities of whatever kind or nature in law, equity or otherwise, whether
now known or unknown, suspected or unsuspected, and whether or not concealed or
hidden, which he now owns or holds or he has at any time heretofore owned or
held as against the Apria Releasees, arising out of or in any way connected with
his employment relationship with any Apria Releasee, or his voluntary
resignation from employment with the Apria Releasees or any other transactions,
occurrences, actions, omissions, claims, losses, damages or injuries whatsoever,
known or unknown, suspected or unsuspected, resulting from any act or omission
by or on the part of any Apria Releasee committed or omitted prior to the date
of this Agreement, including, without limiting the generality of the foregoing,
any claim under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, the
Family and Medical Leave Act of 1993, the California Fair Employment and Housing
Act, the California Family Rights Act, or any claim for severance pay, bonus,
sick leave, holiday pay, vacation pay, life insurance, health or medical
insurance or any other fringe benefit, workers' compensation or disability.
Except for those obligations created by or arising out of this
Agreement for which receipt or satisfaction has not been acknowledged herein,
and except as provided below, Apria on behalf of itself and the Apria Releasees
(to the extent the matter in question arises on the basis of their relationship
to Apria) hereby acknowledges full and complete satisfaction of and releases and
discharges, and covenants not to xxx, Xx. Xxxxxxxxxx and his descendants,
dependents, heirs, executors, administrators, assigns, and successors, and each
of them, hereinafter together and collectively (including Xx. Xxxxxxxxxx)
referred to as the "Mangiofico Releasees," from and with respect to any and all
claims, demands, rights, liens, agreements, obligations losses, damages,
injuries, contracts, covenants, actions, suits, causes of action, obligations,
debts, costs, expenses, attorneys' fees, damages, judgments, orders and
liabilities of whatever kind or nature in law, equity or otherwise, whether
known or unknown, suspected or unsuspected, whether or not concealed or hidden,
arising out of or in any way connected with Xx. Xxxxxxxxxx'x employment
relationship with Apria or its successor, or his voluntary resignation from
employment with Apria, or any other transactions, occurrences, actions,
omissions, claims, losses, damages or injuries whatsoever, known or unknown,
suspected or unsuspected, which Apria now owns or holds or has at any time
heretofore owned or held as against any of the Mangiofico Releasees.
6. It is the intention of Apria and Xx. Xxxxxxxxxx in executing this
Agreement that the same shall be effective as a bar to each and every claim,
demand and cause of action hereinabove
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specified. In furtherance of this intention, Apria and Xx. Xxxxxxxxxx hereby
expressly waive any and all rights and benefits conferred upon them by the
provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and expressly consent
that this Agreement shall be given full force and effect according to each and
all of its express terms and provisions, including those related to unknown and
unsuspected claims, demands and causes of action, if any, as well as those
relating to any other claims, demands and causes of action hereinabove
specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Apria and Xx. Xxxxxxxxxx, and each of them, acknowledge that either may
hereafter discover claims or facts in addition to or different from those which
either or both of them now knows or believes to exist with respect to the
subject matter of this Agreement and which, if known or suspected at the time of
executing this Agreement, may have materially affected this settlement.
Nevertheless, Apria and Xx. Xxxxxxxxxx each hereby waive any right, claim or
cause of action that might arise as a result of such different or additional
claims or facts. Apria and Xx. Xxxxxxxxxx each acknowledge that it or he
understands the significance and consequence of such release and such specific
waiver of SECTION 1542.
7. The terms and conditions of this Agreement shall remain
confidential as between the parties and professional advisers to the parties and
neither of them shall disclose them to any other person, except as provided
herein or as required by the rules and regulations of the Securities and
Exchange Commission ("SEC") or as otherwise may be required by law or court
order. Without limiting the generality of the foregoing, neither Apria nor Xx.
Xxxxxxxxxx will respond to or in any way participate in or contribute to any
public discussion concerning, or in any way relating to, the execution of this
Agreement or the events which led to its execution. Except as provided above
with respect to SEC rules and regulations or as otherwise may be required by law
or court order, if inquiry is made of Apria concerning any of the claims
released by this Agreement or relating to Xx. Xxxxxxxxxx'x employment with
Apria, Apria shall provide to third parties only Xx. Xxxxxxxxxx'x dates of
employment with Apria and its predecessors and his job titles during such
employment, in accordance with the normal practices of Apria's human resources
department, and Xx. Xxxxxxxxxx may disclose that he resigned from Apria's
employment.
8. Xx. Xxxxxxxxxx will continue to keep confidential all confidential
and proprietary Apria information, as required by Section 10 of the Executive
Severance Agreement dated June 28, 1997 between Xx. Xxxxxxxxxx and Apria. In
this regard, Xx. Xxxxxxxxxx acknowledges the continuing effectiveness, in
accordance with their respective terms, of Sections 9 and 10 of said Executive
Severance Agreement.
9. Xx. Xxxxxxxxxx expressly acknowledges and agrees that, by entering
into this Agreement, he is waiving any and all rights or claims that may have
arisen under the Age Discrimination in
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Employment Act of 1967, as amended, which have arisen on or before the date of
execution of this Agreement. Xx. Xxxxxxxxxx further expressly acknowledges that:
a. He is hereby advised in writing by this
Agreement to consult with an attorney before signing this
Agreement;
b. He was given a copy of this Agreement on November 3, 1997, and
informed that he had 21 days within which to consider the Agreement; and
c. He was informed that he has seven (7) days following the date
of his execution of the Agreement in which to revoke the Agreement.
10. Apria and Xx. Xxxxxxxxxx each warrant and represent that neither
has heretofore assigned or transferred to any person not a party to this
Agreement any released matter or any part or portion thereof and each shall
defend, indemnify and hold harmless the other from and against any claim
(including the payment of attorneys' fees and costs actually incurred whether or
not litigation is commenced) based on or in connection with or arising out of
any such assignment or transfer made, purported or claimed.
11. Apria and Xx. Xxxxxxxxxx acknowledge that any employment or
contractual relationship between them will termi nate on November 7, 1997, that
they have no further employment or contractual relationship except as may arise
out of this Agreement and that Xx. Xxxxxxxxxx waives any right or claim to
reinstatement as an employee of Apria and will not seek employment in the future
with Apria.
12. Xx. Xxxxxxxxxx agrees that he shall be exclusively liable for the
payment of all of his share of federal and state taxes which may be due as the
result of the consideration received from the settlement of disputed claims as
set forth herein.
13. Xx. Xxxxxxxxxx agrees that, following the termination of his
employment with Apria, (i) he will, at no cost to him, cooperate with any
reasonable request Apria may make for information or assistance with respect to
any matter involving Xx. Xxxxxxxxxx during his period of employment, and (ii) he
will not disparage Apria at any time. Apria, on behalf of itself and the Apria
Releasees, agrees that it will use its best efforts to cause its officers and
directors not to disparage Xx. Xxxxxxxxxx in any manner.
14. This Agreement is an integrated document and constitutes and
contains the entire agreement and understanding concerning Xx. Xxxxxxxxxx'x
employment, voluntary resignation from the same and the other subject matters
addressed herein between the parties, and supersedes and replaces all prior
negotiations and all agreements, proposed or otherwise, whether written or oral,
concerning the subject matter hereof, and expressly releases all Apria Releasees
from any obligations not covered herein, including, but not limited to Apria's
Severance Pay Plan and, except as provided in the last sentence of Paragraph 8
above, the Executive Severance Agreement, dated June 28, 1997, between Xx.
Xxxxxxxxxx and Apria. This Agreement does not,
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however, affect Xx. Xxxxxxxxxx'x rights under any Apria retirement, 401(k), SERP
or similar benefit plan, including the Abbey Healthcare Group Incorporated
Employees' Retirement Plan. This Agreement also does not modify the provisions
of any of Xx. Xxxxxxxxxx'x stock options.
15. If any provision of this Agreement or the application thereof is
held invalid, the invalidity shall not affect the other provisions or
applications of this Agreement which can be given effect without the invalid
provisions or applications and to this end the provisions of this Agreement are
declared to be severable.
16. This Agreement has been executed and delivered within the State of
California, and the rights and obligations of the parties hereunder shall be
construed and enforced in accordance with, and governed by, the laws of the
State of California without regard to principles of conflict of laws.
17. This Agreement may be executed in counter parts, and each
counterpart, when executed, shall have the efficacy of a signed original.
Photographic copies of such signed counterparts may be used in lieu of the
originals for any purpose.
18. Any dispute or controversy between Xx. Xxxxxxxxxx on the one hand,
and Apria (or any other Apria Releasee), on the other hand, in any way arising
out of, related to, or connected with this Agreement or the subject matter
hereof, or otherwise in any way arising out of, related to, or connected with
Xx. Xxxxxxxxxx'x employment with any Apria Releasee or the termination of Xx.
Xxxxxxxxxx' s employment with any Apria Releasee, shall be submitted for
resolution by arbitration in accordance with the provisions of Section 15 of the
Executive Severance Agreement between the parties dated as of June 28, 1997.
APRIA AND XX. XXXXXXXXXX ACKNOWLEDGE, UNDERSTAND AND AGREE THAT IN THE EVENT OF
A DISPUTE UNDER THIS AGREEMENT, EACH PARTY HAS WAIVED ANY RIGHT TO A JURY TRIAL
AND A JUDICIAL RESOLUTION OF THE DISPUTE.
19. No waiver of any breach of any term or provi sion of this
Agreement shall be construed to be, or shall be, a waiver of any other breach of
this Agreement. No waiver shall be binding unless in writing and signed by the
party waiving the breach.
20. In entering this Agreement, the parties represent that they have
relied upon the advice of their attor neys, who are attorneys of their own
choice, and that they have read the Agreement and have had the opportunity to
have the Agreement explained to them by their attorneys, and that those terms
are fully understood and voluntarily accepted by them.
21. All parties agree to cooperate fully and to execute any and all
supplementary documents and to take all additional actions that may be necessary
or appropriate to give full force to the terms and intent of this Agreement and
which are not inconsistent with its terms.
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22. Xx. Xxxxxxxxxx hereby declares as follows:
I, Xxxx X. Xxxxxxxxxx, hereby acknowledge that I was given 21
days to consider the foregoing Agreement and voluntarily chose to sign the
Agreement prior to the expiration of the 21-day period.
I have read the foregoing Agreement and I accept and agree to the
provisions it contains and hereby execute it voluntarily with full understanding
of its consequences.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
IN WITNESS WHEREOF, the undersigned have executed and delivered
this Agreement as of the 7th day of November, 1997.
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Xxxx X. Xxxxxxxxxx
APRIA HEALTHCARE GROUP INC.
By:
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EXHIBIT A
November 7, 1997
Xx. Xxxxxx X. Xxxxx
Chief Executive Officer and
Chairman of the Board of Directors
Apria Healthcare Group Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Dear Xxxxx:
This is to advise you that effective November 7, 1997, I hereby
voluntarily resign my position as Senior Vice President, Clinical Services and
my employment in any other capacity with Apria Healthcare Group Inc. or any of
its affiliates or subsidiaries.
Sincerely yours,
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Xxxx X. Xxxxxxxxxx
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EXHIBIT B
[Press Release - to be supplied]
