EXHIBIT 10.1
RESIGNATION AND GENERAL RELEASE AGREEMENT
THIS RESIGNATION AND GENERAL RELEASE AGREEMENT (this
"Agreement"), made as of the 26th day of September, 1997, by and
between Xxxxxx X. Xxxxxxxxx, an individual ("Xx. Xxxxxxxxx"), 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. Xxxxxxxxx and Apria
agree as follows:
1. Xx. Xxxxxxxxx shall voluntarily resign from
his positions as President and Chief Operating Officer and as an
employee of Apria and all of its affiliates and subsidiaries by
executing Exhibit A attached hereto, such resignation to be
effective September 26, 1997.
2. Xx. Xxxxxxxxx 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. Xxxxxxxxx the
following amounts:
a. $921,450 in compensation, subject to
standard withholding for federal and state taxes, one-third
of which ($307,150) shall be payable in a lump sum on
October 6, 1997, and two-thirds of which (a total of
$614,300) shall be payable in accordance with Apria's
regular payroll procedures in 52 substantially equal
installments over a 24-month period ending on the first
regular payroll date after October 6, 1999; and
b. All earned but unpaid vacation pay, and
any salary amounts earned but not yet paid, payable as
promptly as practicable following October 6, 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. Xxxxxxxxx
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.
Xxxxxxxxx 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 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.
Xxxxxxxxx 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 liabili
ties 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. Xxxxxxxxx
from and with respect to any and all claims, agreements, obliga
tions, losses, damages, injuries, demands and causes of action,
known or unknown, suspected or unsuspected, whether or not
concealed or hidden, arising out of or in any way connected with
Xx. Xxxxxxxxx'x 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, which Apria now owns or
holds or has at any time heretofore owned or held as against
Xx. Xxxxxxxxx.
6. It is the intention of Apria and Xx.
Xxxxxxxxx in executing this Agreement that the same shall be
effective as a bar to each and every claim, demand and cause of
action hereinabove specified. In furtherance of this intention,
Apria and Xx. Xxxxxxxxx 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. Xxxxxxxxx, 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. Xxxxxxxxx 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. Xxxxxxxxx each acknowledge that it or he understands the
significance and consequence of such release and such specific
waiver of SECTION 1542.
7. Apria and Xx. Xxxxxxxxx each agree that a
press release in substantially the form attached as Exhibit B
hereto shall be issued by Apria promptly following the execution
and delivery of this Agreement. Except to the extent disclosed
in such press release, 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. Xxxxxxxxx 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. Xxxxxxxxx'x employment with Apria, Apria shall
provide to third parties only Xx. Xxxxxxxxx'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.
8. Xx. Xxxxxxxxx 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. Xxxxxxxxx and Apria. Xx.
Xxxxxxxxx also acknowledges the continuing effectiveness, in
accordance with their respective terms, of Sections 7, 8, 9, and
10 of said Executive Severance Agreement (without agreeing with
regard to whether or acknowledgment that said Sections 7 and 8 of
said Agreement are enforceable under California law) provided,
however, that Apria agrees that a violation of the non-compete
provisions of said Section 8 shall not result from any employment
of Xx. Xxxxxxxxx by an employer substantially in the business of
providing home health agency intermittent nursing services, so
long as such employer is not also competing with Apria in the
respiratory therapy, home infusion or home medical equipment
business, and provided, further, that Apria shall not withhold
payments to Xx. Xxxxxxxxx under this Agreement on the basis of a
breach or alleged breach by him of Section 7 or Section 8 of said
Executive Severance Agreement.
9. Xx. Xxxxxxxxx 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 Employment Act of 1967, as amended, which have
arisen on or before the date of execution of this Agreement. Xx.
Xxxxxxxxx further expressly acknowledges that:
a. In return for this Agreement, he will receive
compensation beyond that which he was already entitled to
receive before entering into this Agreement;
b. He is hereby advised in writing by this Agreement
to consult with an attorney before signing this Agreement,
and has done so;
c. He was given a copy of this Agreement on September
24, 1997, and informed that he had 21 days within which to
consider the Agreement; and
d. 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. Xxxxxxxxx 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. Xxxxxxxxx acknowledge that any
employment or contractual relationship between them (including
with any other Apria Releasee) will terminate on September 26,
1997, that they have no further employment or contractual
relationship except as may arise out of this Agreement and that
Xx. Xxxxxxxxx waives any right or claim to reinstatement as an
employee of any Apria Releasee and will not seek employment in
the future with Apria.
12. Xx. Xxxxxxxxx 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. Xxxxxxxxx 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. Xxxxxxxxx during his period of employment, and (ii) he will
not at any time, directly or indirectly, disparage Apria or take
any action with the intention of injuring Apria's business or
prospects. 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. Xxxxxxxxx in any manner.
14. This Agreement is an integrated document and
constitutes and contains the entire agreement and understanding
concerning Xx. Xxxxxxxxx'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. Xxxxxxxxx and Apria. This Agreement does not,
however, affect Xx. Xxxxxxxxx'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, by its terms, modify the provisions
of any of Xx. Xxxxxxxxx'x stock options. Prior to the execution
and delivery of this Agreement, however, Apria's Board of
Directors has authorized amendments to Xx. Xxxxxxxxx'x stock
option agreements to provide that all of Xx. Xxxxxxxxx'x vested
stock options, representing the currently exercisable right to
purchase a total of 84,600 shares of Apria's common stock, shall
continue to be exercisable for said 84,600 shares during the
fifteen-month period following the termination of Xx. Xxxxxxxxx'x
employment, until December 26, 1998. However, if the
Compensation Committee of Apria's Board of Directors, acting on
the advice of counsel, determines that the applicable stock
incentive plan does not permit Apria to extend the final date on
which Xx. Xxxxxxxxx may exercise such options, or such extension
is not in the best interests of Apria, Apria, in exchange for a
cancellation of Xx. Xxxxxxxxx'x vested stock options, agrees to
make a cash payment to Xx. Xxxxxxxxx at the time he would
otherwise have elected to exercise his stock options under the
extended period for exercise described above in an amount equal
to the amount he would have realized if he had exercised the
stock options and immediately sold the stock issued thereunder at
its then Fair Market Value (as defined in the applicable stock
incentive plan). Amendments confirming the extension of Xx.
Xxxxxxxxx'x right to exercise said options or the other
agreements described above shall be executed and delivered to Xx.
Xxxxxxxxx on October 6, 1997.
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 counterparts,
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. Xxxxxxxxx
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. Xxxxxxxxx'x employment with any Apria Releasee or the
termination of Xx. Xxxxxxxxx'x employment with any Apria
Releasee, shall be governed exclusively by the Federal
Arbitration Act, as amended, and shall be submitted for
resolution to mandatory, exclusive and binding arbitration in
Costa Mesa, California before a single arbitrator in accordance
with the then existing Rules of Practice and Procedure of the
Judicial Arbitration and Mediation Services, Orange County Office
("JAMS"). The party initiating arbitration shall first provide
the responding party with written notice of the initiating
party's intention to arbitrate and a brief statement of the
nature of the dispute (the "Arbitration Notice"). The initiating
and responding parties shall then mutually select an arbitrator.
If, however, Apria and Xx. Xxxxxxxxx fail to agree to an
arbitrator within thirty (30) days following effective delivery
of the Arbitration Notice, an arbitrator knowledgeable in
corporate law, employment agreements and disputes arising under
such agreements shall be selected in the manner provided by the
American Arbitration Association from the then current list of
arbitrators maintained by JAMS. Apria and Xx. Xxxxxxxxx agree to
be bound by any final decision rendered by the arbitrator, which
final decision may be enforced in any court of competent
jurisdiction. Apria and Xx. Xxxxxxxxx further agree that the
arbitrator shall have the power to dispense equitable relief.
The arbitrator shall render a single written decision setting
forth an award, to the extent applicable, and state with
reasonable specificity the reasons for the decision reached. In
the event Xx. Xxxxxxxxx incurs attorneys' fees and costs in
enforcing or defending any right or obligation contained herein
and is the prevailing party in any such arbitration, he shall be
entitled to recover attorneys' fees and costs from Apria. Apria
shall not be entitled to attorneys' fees incurred in enforcing or
defending any arbitration proceeding initiated by Xx. Xxxxxxxxx
unless an arbitration finds that Xx. Xxxxxxxxx initiated such
arbitration proceeding in bad faith. Apria and Xx. Xxxxxxxxx
hereby further stipulate that the losing party (as determined by
the arbitrator) shall pay the fees and expenses of the
arbitrator. APRIA AND XX. XXXXXXXXX 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 provision
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 attorneys, 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.
22. Xx. Xxxxxxxxx hereby declares as follows:
I, Xxxxxx X. Xxxxxxxxx, 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 this 26th day of September, 1997.
--------------------------------------
Xxxxxx X. Xxxxxxxxx
APRIA HEALTHCARE GROUP INC.
By: ---------------------------------------
Xxxxxxxx X. Xxxxxxx
Senior Vice President and Chief
Financial Officer
EXHIBIT A
September 26, 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 September 26, 1997, I
hereby voluntarily resign my positions as President and Chief
Operating Officer and my employment in any other capacity with
Apria Healthcare Group Inc. or any of its affiliates or
subsidiaries.
Sincerely yours,
___________________
Xxxxxx X. Xxxxxxxxx
EXHIBIT B
SEPTEMBER 29, 1997
For Further Information, Contact:
Xxxxxx X. Xxxxxxx
Director of Investor Relations
714.427.4919
APRIA HEALTHCARE PRESIDENT RESIGNS
Chairman/CEO Assumes Duties on Interim Basis
COSTA MESA, CALIF. -- September 29, 1997 -- Apria Healthcare
Group Inc. (NYSE:AHG) today announced the resignation of
President and Chief Operating Officer Xxxxxx X. Xxxxxxxxx.
Xxxxxxxxx was named chief operating officer of Apria in
June, 1995 and assumed the additional title of president in
March, 1996. He was responsible for overseeing field operations
and various corporate functions, including sales, marketing and
clinical services. Xxxxxxxxx tendered his resignation to allow
him to pursue other interests.
"On behalf of the board of directors and management team of
Apria, I want to thank Xxxxx for his leadership and contributions
to Apria over the past two years," said Xxxxxx X. Xxxxx, Apria
chairman and chief executive officer.
Until a successor is named, Xxxxx will assume daily
management oversight of Xxxxxxxxx'x responsibilities.
Apria Healthcare provides and/or manages comprehensive
integrated homecare services, including respiratory therapy, home
infusion and home medical equipment. The company operates 350
locations and serves patients in 50 states.
# # #
