EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into by and
between APRIA HEALTHCARE GROUP INC. (the "Company") and XXXXXXXX X.
XXXXXXXXXX (the "Executive"), as of April 4, 2002.
I. EMPLOYMENT.
The Company hereby employs the Executive and the Executive hereby
accepts such employment, upon the terms and conditions hereinafter set
forth. The term of the employment will continue until the termination of
Executive's employment by reason of his written resignation, termination by
the Company for any reason by written notice of termination, or death,
provided that for purposes of Section IV-D-3, the "Expiration Date" shall
initially be April 7, 2004, and shall be extended one (1) day for each day
of the Executive's employment during the term of this Agreement until the
Executive's employment is terminated for any reason. For instance, if the
Executive's employment with the Company is terminated on January 1, 2003,
the Expiration Date shall be December 31, 2004. The Executive's employment
may be terminated at any time by written notice from the Executive to the
Company or from the Company to the Executive, in the manner provided in
Section XVI hereof.
II. DUTIES.
The Executive shall serve during the course of his employment as the
Chief Operating Officer of the Company, reporting to the Chief Executive
Officer. The Executive shall undertake such duties and have such authority
as the Company, through its Chief Executive Officer, shall assign to the
Executive from time to time in the Company's sole and absolute discretion,
provided such duties and responsibilities are the types of duties that
would ordinarily be assigned to a person with employment experience and a
position comparable to that of the Executive. Initially, the Executive
shall have responsibility for the following areas: field operations,
corporate logistics, corporate revenue management, clinical services and
regulatory affairs and compliance. The Executive agrees to devote
substantially all of his working time and efforts to the business and
affairs of the Company. The Executive further agrees that he shall not
undertake any outside activities which create a conflict in interest with
his duties to the Company, or which, in the judgment of the Board of
Directors of the Company, interfere with the performance of the Executive's
duties to the Company.
III. COMPENSATION.
A. The Company will pay to the Executive a base salary at the rate of
$375,000 per year. Such salary shall be payable in periodic installments in
accordance with the Company's customary practices. Amounts payable shall be
reduced by standard withholdings and other authorized deductions. The
Executive's salary may be increased from time to time at the discretion of
the Company.
B. Annual Bonus, Incentive, Savings and Retirement Plans. The
Executive shall be entitled to participate in all annual bonus, incentive,
savings and retirement plans, practices, policies and programs applicable
generally to the Chief Executive Officer of the Company, including without
limitation (i) the Company's Executive Bonus Plan (a copy of which has been
previously provided to the Executive) and (ii) the Company's 401(k) Savings
Plan.
C. Welfare Benefit Plans. The Executive and/or his family, as the case
may be, shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs
provided by the Company (including, without limitation, medical,
prescription, dental, disability, salary continuance, group life,
accidental death and travel accident insurance plans and programs) to the
extent applicable generally to other senior executives of the Company. The
Company reserves the right to modify, suspend or discontinue any and all of
the above plans, practices, policies and programs at any time without
recourse by the Executive so long as such action is taken generally with
respect to other similarly situated peer executives and does not single out
the Executive.
D. Expenses. The Executive shall be entitled to receive prompt
reimbursement for all reasonable employment expenses incurred by him in
accordance with the policies, practices and procedures as in effect
generally with respect to other executives of the Company.
E. Fringe Benefits. The Executive shall be entitled to fringe
benefits, including without limitation (i) a car allowance of $8,400 per
year, payable in periodic installments in accordance with the Company's
customary practices, (ii) reasonable access to the Company's independent
auditors for personal financial planning, (iii) reasonable travel and
entertainment expenses of the Executive's spouse, on an actually incurred
basis when necessary in conjunction with participation in Company events,
and (iv) such other benefits in accordance with the plans, practices,
programs and policies as may be in effect generally with respect to the
Chief Executive Officer of the Company.
F. Vacation. The Executive shall be entitled to four weeks of paid
vacation annually, to be available and prorated monthly during the term of
this Agreement and otherwise to be consistent with the vacation policy and
practice applicable to other executives of the Company.
G. Relocation. The Executive agrees to relocate his family and his
primary residence to Orange County, California, and to perform his duties
under Section II of this Agreement primarily from the Company's executive
offices in Lake Forest, California. The Company shall provide the Executive
with the relocation benefits described in the Company's offer letter dated
March 29, 2002.
IV. TERMINATION.
A. Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death. If the Company determines in good
faith that the Disability of the Executive has occurred (pursuant to the
definition of Disability set forth below), it may give to the Executive
written notice in accordance with Section XVII if its intention to
terminate the Executive's employment. In such event, the Executive's
employment with the Company shall terminate effective on the 30th day after
receipt of such notice by the Executive, provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of his duties. For purposes of this Agreement, "Disability"
shall mean a physical or mental impairment which substantially limits a
major life activity of the Executive and which renders the Executive unable
to perform the essential functions of his position, even with reasonable
accommodation which does not impose an undue hardship on the Company. The
Company reserves the right, in good faith, to make the determination of
Disability under this Agreement based upon information supplied by the
Executive and/or his medical personnel, as well as information from medical
personnel (or others) selected by the Company or its insurers.
B. Cause. The Company may terminate the Executive's employment for
Cause. For purposes of this Agreement, "Cause" shall mean that the Company,
acting in good faith based upon the information then known to the Company,
determines that the Executive has engaged in or committed: willful
misconduct; theft, fraud or other illegal conduct; failure to substantially
perform his duties (other than such failure resulting from the Executive's
Disability) for a 30-day period after written demand for substantial
performance is delivered by the Company that specifically refers to this
paragraph and identifies the manner in which the Company believes the
Executive has not substantially performed his duties; insubordination; any
willful act that is likely to and which does in fact have the effect of
injuring the reputation or business of the Company; violation of any
fiduciary duty; violation of the Executive's duty of loyalty to the
Company; or a breach of any material term of this Agreement for a 30-day
period after written notification is delivered by the Company that
specifically refers to this paragraph and identifies the manner in which
the Company believes the Executive has breached a material term of this
Agreement. For purposes of this paragraph, no act, or failure to act, on
the Executive's part shall be considered willful unless done or omitted to
be done, by him not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company. Notwithstanding
the foregoing, the Executive shall not be deemed to have been terminated
for Cause without delivery to the Executive of a notice of termination
signed by the Company's Chief Executive Officer or Chairman of the Board
stating that in the good faith opinion of the officer signing such notice,
the Executive has engaged in or committed conduct of the nature described
in the second sentence of this paragraph, and specifying the particulars
thereof in detail.
C. Other than Cause or Death or Disability. The Executive or the
Company may terminate the Executive's employment at any time, without
Cause, by giving the other party to this Agreement at least 30 days advance
written notice of such termination, subject to the provisions of this
Agreement.
D. Obligations of the Company Upon Termination.
1. Death or Disability. If the Executive's employment is terminated by
reason of the Executive's death or Disability, this Agreement shall
terminate without further obligations to the Executive or his legal
representatives under this Agreement, other than for (a) payment of
the sum of (i) the Executive's base salary through the date of
termination of employment to the extent not theretofore paid, plus
(ii) any earned vacation pay, to the extent not theretofore paid (the
sum of the amounts described in clauses (i) and (ii) shall be
hereinafter referred to as the "Accrued Obligations"), which shall be
paid to the Executive or his estate or beneficiary, as applicable, in
a lump sum in cash within 30 days of the date of termination of
employment; and (b) payment to the Executive or his estate or
beneficiary, as applicable, (i) any amounts due pursuant to the terms
of any applicable welfare benefit plans; (ii) obligations pursuant to
the terms of any outstanding stock option agreements; and (iii)
obligations under the Company's 401(k) Savings Plan.
2. Cause. If the Executive's employment is terminated by the Company
for Cause, this Agreement shall terminate without further obligations
to the Executive other than for the timely payment of the Accrued
Obligations. If it is subsequently determined that the Company did not
have Cause for termination under this Section IV-D-2, then the
Company's decision to terminate shall be deemed to have been made
under Section IV-D-3 and the amounts payable thereunder shall be the
only amounts the Executive may receive for his termination.
3. Other than Cause or Death or Disability.
(a) If, during the term of this Agreement, (i) the Company terminates
the Executive's employment for other than Cause or death or
Disability, or (ii) the Executive terminates his employment hereunder
with Good Reason (as defined below), the Executive's employment shall
terminate and the Executive shall be entitled to receive the
following:
(1) an amount equal to the Contract Balance (as defined below) in one
lump sum upon such termination of his employment; and
(2) the Accrued Obligations as of the date of termination of
employment.
Any payment made pursuant to this Section IV-D-3(a) shall be reduced
by all amounts required to be withheld by applicable law, and shall
only be made in exchange for a valid release of all claims the
Executive may have against the Company in a form acceptable to the
Company. Such payment shall constitute the sole and entire obligation
of the Company to provide any compensation or benefits to the
Executive upon termination, except for obligations under the Company's
401(k) Savings Plan, obligations pursuant to the terms of any
outstanding stock option agreements, and the Company's obligations to
make payments required to be made under any other incentive
compensation plan .
(b) The term "Good Reason" means:
(i) if the Executive's annual base salary is reduced, except for
a general one-time "across-the-board" salary reduction not
exceeding ten percent (10%) which is imposed simultaneously on
all officers of the Company; or
(ii) if, following the Executive's relocation to the Orange
County, California area, the Company requires the Executive to be
based at an office location which will result in an increase of
more than thirty (30) miles in the Executive's one-way commute;
or
(iii) if the Company does not permit the Executive to continue to
serve as the Chief Operating Officer or another mutually
acceptable senior executive position.
(c) The term "Contract Balance" means an amount equal to the annual
base salary and car allowance that Executive would have earned from
the Company had the Executive continued his employment from the date
the Executive's employment terminated through the Expiration Date
(i.e., base salary and car allowance for two (2) years), using the
rate of base salary and the car allowance in effect on the date on
which the Executive received or gave written notice of his
termination, plus an amount equal to two (2) times the sum of (i) an
amount equal to the average of the Executive's two (2) most recent
annual bonuses, if any, received under the Company's Executive Bonus
Plan prior to such notice of termination, and (ii) an amount
determined by the Company from time to time in its sole discretion to
be equal to the average annual cost for Company employees of obtaining
medical, dental and vision insurance under COBRA, which annual amount
is hereby initially determined to be $10,000.
(d) A "Change of Control" shall be deemed to have occurred if:
(i) any "person," as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"1934 Act") is, becomes or enters a contract to become, the
"beneficial owner," as such term is used in Rule 13d-3
promulgated under the 1934 Act, directly or indirectly, of
securities representing twenty-five percent (25%) or more of the
voting common stock of the Company;
(ii) all or substantially all of the business of the Company is
disposed of, or a contract is entered to dispose of all of the
business of the Company pursuant to a merger, consolidation other
transaction in which (a) the Company is not the surviving company
or (b) the stockholders of the Company prior to the transaction
do not continue to own at least sixty percent (60%) of the
surviving corporation; or
(iii) the Company is materially or completely liquidated.
Notwithstanding clause (i) above, a "Change of Control" shall not
be deemed to have occurred solely because a person shall be,
become or enter into a contract to become the beneficial owner of
25% or more, but less than 40%, of the voting common stock of the
Company, if and for so long as such person is bound by, and in
compliance with, a contract with the Company providing that such
person may not nominate, vote for, or select more than a minority
of the directors of the Company. The exception provided by the
preceding sentence shall cease to apply with respect to any
person upon expiration, waiver, or non-compliance with any such
contract, by which such person was bound.
(e) In the event the Executive initiates arbitration pursuant to
Section V to enforce his rights to any payments under this Section
IV-D-3, or the Company seeks to withhold or reduce any such payments
for any reasons, then:
(i) the burden of proving that the Executive is not entitled to
such payments shall be on the Company;
(ii) The Company shall pay all expenses incurred by the Executive
in prosecuting or defending any such proceeding as they are incurred
by the Executive in advance of the final disposition of such dispute,
together with any tax liability incurred by the Executive in
connection with the receipt of such amounts; provided, however, that
the payment of such expenses incurred in advance of the final
disposition of such proceeding shall be made only upon delivery to the
Company of an undertaking, by or on behalf of the Executive, to repay
all amounts so advanced to the extent the arbitrator in such
proceeding so determines as provided in Section V; and
(iii) All such payments required under this Agreement shall
continue to be made on the dates provided herein without any offsets,
claims or charges of any kind whatsoever being asserted by the
Company, except in the event a final determination pursuant to the
arbitration provisions of Section V has been rendered and such
determination provides that the Company is entitled to assert any such
offset, claim or charge against the Executive.
4. Exclusive Remedy. The Executive agrees that the payments
contemplated by this Agreement shall constitute the exclusive and sole
remedy for any termination of his employment and the Executive covenants
not to assert or pursue any other remedies, at law or in equity, with
respect to any termination of employment.
V. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement or Executive's employment by the Company shall be settled
exclusively by arbitration, conducted before a single neutral arbitrator in
accordance with the American Arbitration Association's National Rules for
Resolution of Employment Disputes as then in effect. Such arbitration shall
be conducted in Orange County, California, and the arbitrator shall be a
resident of Orange County, California or of a county contiguous to Orange
County, California. Judgment may be entered on the arbitrator's award in
any court having jurisdiction; provided, however, that the Company shall be
entitled to seek a restraining order or injunction in any court of
competent jurisdiction to prevent any continuation of any violation of the
provisions of Sections VI, VII, or VIII of this Agreement and the Executive
hereby consents that such restraining order or injunction may be granted
without the necessity of the Company's posting any bond, and provided,
further, that the Executive shall be entitled to seek specific performance
of his right to be paid until the date of employment termination during the
pendency of any dispute or controversy arising under or in connection with
this Agreement. The arbitrator's order shall specify, based on the outcome
of the arbitration, whether the Executive shall repay any of the
Executive's expenses theretofore paid by the Company pursuant to Section
IV-D-3(e)(ii). The fees and expenses of the arbitrator shall be borne by
the Company.
VI. NONCOMPETITION; ANTISOLICITATION.
The Executive promises and agrees that during the term of this
Agreement and for a period of two years thereafter, he will not, directly
or indirectly, either for himself or for any other person, entity or
business, (i) be engaged in any way with a competing business of the
Company or any of its present or future subsidiaries or affiliates, or (ii)
induce or attempt to induce any patient, customer, supplier, licensee, or
other party having a business relationship with Apria or any of its
subsidiaries or affiliates to cease or reduce the scope of that
relationship. For purposes of the above covenant in this Section VI, the
Executive shall "be engaged in any way with a competing business of the
Company" if he, directly or indirectly, engages or invests in, owns,
manages, operates, finances, controls, or participates in the ownership,
management, operation or control of, is employed by, lends his name or
credit to, or renders consulting or other services or advice to, any
person, firm, corporation or other business entity which performs or sells
services or products which are competitive with those services and products
performed or sold at any time after the date hereof by the Company or any
of its subsidiaries or affiliates in any jurisdiction.
VII. SOLICITING EMPLOYEES.
The Executive promises and agrees that, for a period of two years
following termination of his employment, he will not directly or indirectly
solicit any of the Company employees who earned annually $50,000 or more as
a Company employee during the last six months of his or her own employment
to work for any other business, individual, partnership, firm, corporation,
or other entity.
VIII. CONFIDENTIAL INFORMATION.
A. The Executive, in the performance of his duties on behalf of the
Company, shall have access to, receive and be entrusted with confidential
information, including but not limited to systems technology, field
operations, reimbursements, development, marketing, organizational,
financial, management, administrative, clinical, customer, distribution and
sales information, data, specifications and processes presently owned or at
any time in the future developed, by the Company or its agents or
consultants, or used presently or at any time in the future in the course
of its business that is not otherwise part of the public domain
(collectively, the "Confidential Material"). All such Confidential Material
is considered secret and will be available to the Executive in confidence.
Except in the performance of duties on behalf of the Company, the Executive
shall not, directly or indirectly for any reason whatsoever, disclose or
use any such Confidential Material, unless such Confidential Material
ceases (through no fault of the Executive's) to be confidential because it
has become part of the public domain. All records, files, drawings,
documents, notes, disks, diskettes, tapes, magnetic media, photographs,
equipment and other tangible items, wherever located, relating in any way
to the Confidential Material or otherwise to the Company's business, which
the Executive prepares, uses or encounters during the course of his
employment, shall be and remain the Company's sole and exclusive property
and shall be included in the Confidential Material. Upon termination of
this Agreement by any means, or whenever requested by the Company, the
Executive shall promptly deliver to the Company any and all of the
Confidential Material, not previously delivered to the Company, that may be
or at any time has been in the Executive's possession or under the
Executive's control.
B. The Executive hereby acknowledges that the sale or unauthorized use
or disclosure of any of the Company's Confidential Material by any means
whatsoever and at any time before, during or after the Executive's
employment with the Company shall constitute unfair competition. The
Executive agrees that he shall not engage in unfair competition either
during the time employed by the Company or any time thereafter.
IX. EXCISE TAX.
A. In the event that any amount or benefit that may be paid or
otherwise provided to or in respect of the Executive by or on behalf of the
Company or any affiliate, whether pursuant to this Agreement or otherwise
(collectively, "Covered Payments"), is or may become subject to the tax
imposed under Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code") (or any successor provision or any comparable provision of
state, local or foreign law) ("Excise Tax"), the Company will pay to the
Executive a "Reimbursement Amount" equal to the total of: (A) any Excise
Tax on the Covered Payments, plus (B) any Federal, state, and local income
taxes, employment and excise taxes (including the Excise Tax) on the
Reimbursement Amount, plus (C) the product of any deductions disallowed for
Federal, state or local income tax purposes because of the inclusion of the
Reimbursement Amount in the Executive's income multiplied by the
Executive's combined Federal, state, and local income tax rate for the
calendar year in which the Reimbursement Amount is includible in the
Executive's taxable income, plus (D) any interest, penalties or additions
to tax imposed under applicable law in connection with the Excise Tax or
the Reimbursement Amount, plus (E) any reasonable out-of-pocket costs
incurred by the Executive in connection with any of the foregoing. For
purposes of this Section IX-A, the Executive will be deemed to pay (1)
Federal income taxes at the highest applicable marginal rate of Federal
income taxation applicable to individuals for the calendar year in which
the Reimbursement Amount is includible in the Executive's taxable income
and (2) any applicable state and local income taxes at the highest
applicable marginal rate of taxation applicable to individuals for the
calendar year in which such Reimbursement Amount is includible in the
Executive's taxable income, net of the maximum reduction in Federal income
taxes which could be obtained from the deduction of such state or local
taxes if paid in such year (determined without regard to limitations on
deductions based upon the amount of the Executive's adjusted gross income).
Except to the extent provided in Section IX-C below, this provision is
intended to put Employee in the same position as Employee would have been
had no Excise Tax been imposed upon or incurred as a result of any Payment.
B. The payment of a Reimbursement Amount under this Section IX shall
not be conditioned upon the Executive's termination of employment.
C. Notwithstanding the foregoing provisions of this Section IX-A, if
the Company determines that, absent this sentence, the Executive is
entitled to a Reimbursement Amount, but that the portion of the Covered
Payments that would be treated as "parachute payments" under Code Section
280G ("Covered Parachute Payments") does not exceed 103% of the greatest
amount of Covered Parachute Payments that could be paid to the Executive
such that the receipt of such Covered Parachute Payments would not give
rise to any Excise Tax (the "Safe Harbor Amount"), then no Reimbursement
Amount shall be paid to the Executive (unless for any reason Executive is
determined to be subject to the Excise Tax after application of the balance
of this sentence, in which case the full Reimbursement Amount shall be
paid), and the Covered Parachute Payments payable under this Agreement
shall be reduced so that the Covered Parachute Payments, in the aggregate,
are reduced to the Safe Harbor Amount. For purposes of reducing the Covered
Parachute Payments to the Safe Harbor Amount, only amounts payable under
this Agreement shall be reduced. If the reduction of the amounts payable
under this Agreement would not result in a reduction of the Covered
Parachute Payments to the Safe Harbor Amount, no amounts payable under this
Agreement or otherwise shall be reduced pursuant to this Section IX-C. The
Company shall notify the Executive of any intent to reduce the amount of
any Covered Payments in accordance with this Section IX-C (which notice, if
practicable, shall be given prior to the occurrence of an event that would
give rise to a Covered Parachute Payment), and Executive shall have the
right to designate which of the Covered Payments shall be reduced and to
what extent, provided that the Executive may not so elect to the extent
that, in the determination of counsel to the Company, such election would
cause the Executive to be subject to the Excise Tax.
D. The determination of whether an event described in Code Section
280G(b)(2)(A)(i) has occurred, the amount of any Reimbursement Amount
and/or the amounts described in Section IX-C above shall be made initially
by an accounting firm mutually acceptable to the Company and the Executive;
provided, however, that nothing herein shall limit the Executive's right to
payment of the Reimbursement Amount in the event it is determined that any
of such initial determinations was incorrect.
E. The Executive shall promptly notify the Company in writing of any
claim by any taxing authority that, if successful, would require the
payment by the Company of a Reimbursement Amount; provided, however, that
failure by the Executive to give such notice promptly shall not result in a
waiver or forfeiture of any of the Executive's rights under this Section IX
except to the extent of actual damages suffered by the Company as a result
of such failure. If the Company notifies the Executive in writing within 15
days after receiving such notice that it desires to contest such claim (and
demonstrates to the reasonable satisfaction of the Executive its ability to
pay any resulting Reimbursement Amount), the Executive shall:
1. give the Company any information reasonably requested by the
Company relating to such claim;
2. take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney selected by the Company that is reasonably acceptable
to the Executive;
3. cooperate with the Company in good faith in order effectively to
contest such claim; and
4. permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company's actions do not unreasonably interfere
with or prejudice the Executive's disputes with the taxing authority as to
other issues; and provided, further, that the Company shall bear and pay on
an after-tax and as-incurred basis, all attorneys fees, costs and expenses
(including additional interest, penalties and additions to tax) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax and as-incurred basis, for all resulting taxes
(including, without limitation, income and excise taxes), interest,
penalties and additions to tax.
X. SUCCESSORS.
A. This Agreement is personal to the Executive and shall not, without
prior written consent of the Company, be assignable by the Executive.
B. This Agreement shall inure to the benefit of and be binding upon
the Company, its subsidiaries and its successors and assigns and any such
subsidiary, successor or assignee shall be deemed substituted for the
Company under the terms of this Agreement for all purposes. As used herein,
"successor" and "assignee" shall include any person, firm, corporation or
other business entity which at any time, whether by purchase, merger or
otherwise, directly or indirectly acquires the stock of the Company or to
which the Company assigns this Agreement by operation of law or otherwise.
XI. WAIVER.
No waiver of any breach of any term or provision of this Agreement
shall be construed to be, nor 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.
XII. MODIFICATION.
This Agreement may not be amended or modified other than by a written
agreement executed by the Executive and the Company's Chief Executive
Officer or Chairman.
XIII. SAVINGS CLAUSE.
If any provision of this Agreement or the application thereof is held
invalid, such invalidity shall not affect any other provisions or
application of the Agreement which can be given effect without the valid
provisions or applications and, to this end, the provisions of this
Agreement are declared to be severable.
XIV. COMPLETE AGREEMENT.
This Agreement constitutes and contains the entire agreement and final
understanding concerning the Executive's employment with the Company and
the other subject matters addressed herein between the parties. It is
intended by the parties as a complete and exclusive statement of the terms
of their agreement. It supersedes and replaces all prior negotiations and
all agreements proposed or otherwise, whether written or oral, concerning
the subject matter hereof. Any representation, promise or agreement not
specifically included in this Agreement shall not be binding upon or
enforceable against either party. This is a fully integrated agreement.
Except as provided herein, the Executive's Executive Severance Agreement
with the Company, dated June 27, 2001, is no longer in effect.
XV. GOVERNING LAW.
This Agreement shall be deemed to have 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 conflicts of laws.
XVI. CONSTRUCTION.
In any construction to be made of this Agreement, the same shall not
be construed against any party on the basis that the party was the drafter.
The captions of this Agreement are not part of the provisions hereof and
shall have no force or effect.
XVII. COMMUNICATIONS.
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
delivered by hand or by courier, or if mailed by registered or certified
mail, postage prepaid, addressed to the Executive at 000 Xxxxxxx Xxxx Xxxx,
XxXxxxxx, XX 00000 or addressed to the Company at 00000 Xxxxxxxxxx Xxxxx,
Xxxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Senior Vice President and General
Counsel, with a copy to the attention if the Senior Vice President, Human
Resources. Either party may change the address at which notices shall be
given by written notice given in the above manner.
XVIII. EXECUTION.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Xerographic copies of such signed
counterparts may be used in lieu of the originals for any purpose.
IX. LEGAL COUNSEL.
The Executive and the Company recognize that this is a legally binding
contract and acknowledge and agree that they have each had the opportunity
to consult with legal counsel of their choice.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
APRIA HEALTHCARE GROUP INC. THE EXECUTIVE
By: ____________________________ _______________________________
Xxxxxxxx X. Xxxxx Xxxxxxxx X. Xxxxxxxxxx
Chief Executive Officer
