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EXHIBIT 10.2
AGREEMENT
Xxxxxxx X. Xxxxx ("Xxxxx") and Xxxxx Healthcare Corporation and Coram,
Inc. (collectively "Coram"), desiring to provide for their future cooperation in
light of Xx. Xxxxx'x resignation as an employee and officer of Coram and member
of their Boards of Directors, do agree as follows:
1. Except for obligations expressly created by this Agreement, the
parties hereto release and discharge one another from all obligations, claims or
liabilities of any kind whatsoever, known or unknown, based upon or arising out
of any act, event, agreement, transaction or occurrence which occurred or was
entered into prior to the date hereof.
2. The Employment Agreement dated April 26, 1999 between Xxxxx and
Xxxxx ("Employment Agreement") shall govern Xxxxx'x rights and obligations as a
former employee of Coram, except that: (a) for purposes of that Agreement Xxxxx
will be treated as having been terminated by Coram without cause, (b) if
requested by Xxxxx, Xxxxx shall make additional tax withholding payments on his
behalf for the 1999 tax year, which payments shall be repaid pro rata from the
amounts he would otherwise receive during the last twelve months of the
Severance Period prescribed in the Employment Agreement and (c) the sum of
$27,645.44, representing Xxxxx'x accrued but unpaid time off, shall be paid to
him when this Agreement is no longer revocable pursuant to the provisions of
Paragraph 9, below.
It is understood that Xxxxx'x rights under the Employment Agreement are
limited to:
o payment of all amounts of base salary, earned by Xxxxx
through the effective date of his resignation;
o continuation of Xxxxx'x base salary at its then current
rate for the duration of the Severance Period described
in Exhibit A to the Employment Agreement ("the Severance
Period") payable in accordance with Coram's normal
payroll practices;
o continuation of all health benefits for the period of
time contemplated for the Severance Period at no cost to
Xxxxx other than the premium payable by Xxxxx pursuant to
the terms of Coram's health benefit plan as consistently
applied among Coram's employees;
o payment during the Severance Period of any life
insurance, disability or other benefits, if any, for
which Xxxxx is now eligible under the terms of Coram's
employee retirement, benefit and welfare programs;
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o the right to exercise all options to purchase shares of
common stock of Coram that have been granted to Xxxxx
by Coram that were exerciseable by Xxxxx upon the
effective date of his resignation at any time during
the Severance Period.
3. In the event Xxxxx dies before receiving all sums due him under the
preceding paragraph, the remaining balance shall be paid, without acceleration,
to his estate.
4. Coram will reimburse Xxxxx'x reasonable costs for outplacement
assistance up to $25,000. Xxxxx will also be entitled to keep the laptop
computer he has used while a Coram Employee. Except as expressly provided in
this Agreement, or with respect to amounts he is already entitled to receive as
reimbursement for expenses previously incurred, Xxxxx shall have no right to any
other payment or reimbursement by Coram, including any payment for car expense
or access to computer services.
5. The Indemnification Agreement dated October 22, 1999, between Xxxxx
and Xxxxx shall remain in effect, except however, that in any litigation to
which both Coram and Xxxxx are parties, Xxxxx will be represented by Coram's
counsel, at its expense, until and unless a conflict arises between the
interests of Coram and Xxxxx in such litigation. In the event that the firm of
Xxxxxx, Xxxxx & Xxxx, LLP ceases to represent Xxxxx and Coram in such
litigation, Xxxxx may obtain separate representation, the reasonable cost of
which will be paid by Coram.
6. In addition to the payments set forth in paragraph 2 above, as a
material part of the consideration for this Agreement, Xxxxx agrees that he
will, upon request and reasonable notice, assist Coram in its business,
including assisting its counsel in litigation involving the Company and
providing truthful testimony therein. For such assistance, Xxxxx shall receive
consulting fees of $250 per hour.
7. This Agreement shall bind and inure to the benefit of Coram, its
past and present parents, subsidiaries and affiliates, and all past or present
officers, directors, employees, agents and attorneys of any of the foregoing. It
is specifically understood that this Agreement binds all Coram affiliates listed
on Attachment A, hereto, and that Xxxxx no longer has any employment or other
relationship with any of them.
8. In the negotiation and drafting of this Agreement the parties have
been represented by counsel of their own choosing who have participated in such
drafting. Accordingly, no party is to be favored in the interpretation of any
term of this Agreement.
9. Xxxxx declares that he has been advised by Coram as part of the
negotiation of this Agreement to consult with an attorney prior to executing it,
which he has done, and has been advised by his attorneys with respect to it.
Xxxxx declares that he has been given a reasonable period of time, including at
least 45 days if he so desires, to consider this Agreement before executing it.
This Agreement may be revoked by Xxxxx by delivering written notice of
revocation to Xxxxx Xxxxxx, Esq., Coram's General Counsel, at 0000 Xxxxxxxxxxx
Xx., Xxxxx 0000, Xxxxxx, Xxxxxxxx, on or before the seventh day after he
executes this Agreement. This Agreement shall not become effective or
enforceable until this revocation period has expired. After the revocation
period expires, this Agreement shall be irrevocable.
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10. The parties hereto waive and elect to forgo any reliance upon any
provision of any law purporting to restrict the effectiveness of a general
release. They recognize that there may be facts, currently unknown to them,
which might have influenced their decision to enter into this Agreement and they
expressly assume that risk and affirm this Agreement notwithstanding that
possibility.
11. This Agreement shall be construed and enforced in accordance with
the laws of the State of Colorado.
12. The parties have entered into this Agreement for the purpose of
resolving their differences and prescribing the terms of their future
co-operation. Neither the execution of this Agreement nor any of its terms is
intended to be, or may be construed as, an admission of any fact or any claim by
any person.
13. Any proceedings to interpret or enforce any provision of this
Agreement shall take place in Denver, Colorado, in an arbitration conducted
under the rules of the American Arbitration Association applicable to
contractual disputes, the outcome of which shall be enforceable in court. In any
such proceedings, the prevailing party shall recover its reasonable expenses
including attorneys' fees.
14. This Agreement constitutes the entire agreement of the parties,
supersedes any and all prior agreements, negotiations and representations and
may not be amended except by a writing signed by the party against which such
amendment is sought to be enforced.
Dated:
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CORAM HEALTHCARE CORPORATION
By
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Its
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Dated:
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CORAM, INC.
By
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Its
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Dated:
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Xxxxxxx X. Xxxxx
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