EXHIBIT 10.4
RESIGNATION AND GENERAL RELEASE AGREEMENT
THIS RESIGNATION AND GENERAL RELEASE AGREEMENT (this
"Agreement"), made as of the 15th day of May, 1998, by and
between Xxxxxxxx X. Xxxxxxx, an individual ("Xx. Xxxxxxx"), 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. Xxxxxxx and Apria agree
as follows:
1. Xx. Xxxxxxx shall voluntarily resign from his
positions as an officer and employee of Apria and all of its
affiliates and subsidiaries by executing Exhibit A attached
hereto, such resignation to be effective June 16, 1998.
2. Xx. Xxxxxxx 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. Xxxxxxx the following
amounts:
a. $282,668 in compensation, subject to standard
withholding for federal and state taxes, which shall be
payable as follows. On June 16, 1998 Apria shall make a
lump-sum payment to Xx. Xxxxxxx of $94,000. The remaining
$188,668 shall be payable in accordance with Apria's regular
payroll procedures in 26 substantially equal installments
over a 12-month period commencing on the first regular
payroll date after June 16, 1998; and
b. All earned but unpaid vacation pay, and any
salary amounts earned but not yet paid, payable as promptly
as practicable following June 16, 1998.
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. Xxxxxxx 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 satisfaction
has not been acknowledged herein, (ii) any rights Xx. Xxxxxxx may
have under stock option agreements with Apria and any retirement,
401(k), SERP or similar benefit plans of Apria, 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. Xxxxxxx 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, subsid
iaries 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 unsus
pected, 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 connect
ed 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 bene
fit, 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. Xxxxxxx
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. Xxxxxxx'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.
Xxxxxxx.
6. It is the intention of Apria and Xx. Xxxxxxx 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. Xxxxxxx 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. Xxxxxxx, 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. Xxxxxxx 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. Xxxxxxx 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. Xxxxxxx 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. Xxxxxxx'x employment with Apria, Apria shall
provide to third parties only Xx. Xxxxxxx'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. Xxxxxxx will continue to keep confidential all
confidential and proprietary Apria information, as required by
Section 10 of the Executive Severance Agreement dated June 28,
1998 between Xx. Xxxxxxx and Apria. In this regard, Xx. Xxxxxxx
acknowledges the continuing effectiveness, in accordance with
their respective terms, of Sections 7, 9 and 10 of said Executive
Severance Agreement.
9. Xx. Xxxxxxx 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. Xxxxxxx 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 May 8,
1998, 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. Xxxxxxx 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. Xxxxxxx acknowledge that any
employment or contractual relationship between them (including
with any other Apria Releasee) will terminate on June 16, 1998,
that they have no further employment or contractual relationship
except as may arise out of this Agreement and that Xx. Xxxxxxx
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. Xxxxxxx 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. Xxxxxxx 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. Xxxxxxx 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. Xxxxxxx in any manner.
14. This Agreement is an integrated document and
constitutes and contains the entire agreement and understanding
concerning Xx. Xxxxxxx'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. Xxxxxxx and Apria. This Agreement does not, however,
affect Xx. Xxxxxxx'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. Xxxxxxx'x stock
options. Prior to the execution and delivery of this Agreement,
however, the Compensation Committee of Apria's Board of Directors
has authorized amendments to Xx. Xxxxxxx'x stock option
agreements to provide that all of Xx. Xxxxxxx'x vested stock
options, representing the currently exercisable right to purchase
a total of 56,120 shares of Apria's common stock, shall continue
to be exercisable during the three-year period following the
termination of Xx. Xxxxxxx'x employment, until June 16, 2001,
except for the 5,000 share option granted on February 28, 1991,
which shall continue to be exercisable for one year following the
termination of employment, until June 16, 1999. Amendments
confirming the extension of Xx. Xxxxxxx'x right to exercise said
options shall be executed and delivered to Xx. Xxxxxxx on or
prior to June 16, 1998.
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. Xxxxxxx 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. Xxxxxxx'x employment with any Apria Releasee or the
termination of Xx. Xxxxxxx' 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. XXXXXXX 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. Xxxxxxx hereby declares as follows:
I, Xxxxxxxx X. Xxxxxxx, 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 15th day of May, 1998.
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Xxxxxxxx X. Xxxxxxx
APRIA HEALTHCARE GROUP INC.
By:
---------------------------------
Xxxxxxxx X. Xxxxx
President and Chief Operating Officer
EXHIBIT A
May 15, 1998
Xx. Xxxxxxxx X. Xxxxx
President & Chief Operating Officer
Apria Healthcare Group Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Dear Xxxxx:
This is to advise you that effective June 16, 1998, I hereby
voluntarily resign my position as Senior Vice President, Chief
Financial Officer and Treasurer and my employment in any other
capacity with Apria Healthcare Group Inc. or any of its
affiliates or subsidiaries.
Sincerely yours,
--------------------------------
Xxxxxxxx X. Xxxxxxx
