Exhibit 10.26
FULL AND FINAL RELEASE OF CLAIMS
This Full and Final Release of Claims (the "Release") is made and
entered into by and between Vista Hospice Care, Inc. ("VistaCare") and Xxxx
Xxxxxxxxx ("Xx. Xxxxxxxxx").
1. PAYMENT. Xx. Xxxxxxxxx'x last day of employment with VistaCare was
May 29, 2001. However, upon her execution of this Release, she will receive the
following consideration, which is not available through any policy of VistaCare
and only through this agreement, as follows:
(a) Payment of two hundred fifty thousand ($250,000.00) which will
be paid in one installment following five (5) business days
after execution and completion of the non-revocation period of
this agreement.
2. RELEASE OF ALL CLAIMS. In exchange for the payments set forth above
and other good and valuable consideration, Xx. Xxxxxxxxx waives all claims
against VistaCare, Inc., Vista Hospice Care, Inc., and any and all of their
parents, subsidiaries, or affiliate entities, principals, shareholders,
officers, employees, insurers and agents (collectively, the "Releases") arising
out of her employment with VistaCare or separation from that employment. Xx.
Xxxxxxxxx expressly acknowledges and agrees that this Release includes without
limitation any claim or lawsuit arising under the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act, the Equal Pay Act, the
American With Disabilities Act, the Family and Medical Leave Act, and any other
federal and/or state statute or local ordinance or any common law cause of
action including, without limitation, claims for breach of contract,
Whistleblower claims, wrongful discharge, or claim of personal injury. Xx.
Xxxxxxxxx agrees that she will in no way disparage, demean, make negative
comments about or take negative action against VistaCare or assist in any way
any other individual or entity attempting to make or making a claim of any type
unless required by law or court order, Xxxxxxxxx further agrees that she will
file the appropriate form(s) and will withdraw any and all charge(s) that she
has filed with the EEOC or any other agency regarding her employment or the
termination of employment from Vistacare.
3. TRADE SECRETS AND NON-COMPETITION AGREEMENT. During the term of her
employment with VistaCare, Xx. Xxxxxxxxx has obtained information and data
concerning the business and affairs of VistaCare, including but not limited to
information concerning VistaCare's national marketing and acquisition plans
("Trade Secrets"). Xx. Xxxxxxxxx acknowledges that all such Confidential
Information is and will remain the property of VistaCare. As used in this
Release, Trade Secrets also includes all information of a business, financial,
marketing, technical or other nature pertaining to VistaCare, its affiliates or
their affairs and all other information that Xx. Xxxxxxxxx has agreed not to
disclose, unless and to the extent that Confidential Information has entered or
enters the public domain through no fault of Xx. Xxxxxxxxx. Xx. Xxxxxxxxx agrees
to make no use whatsoever, directly or indirectly, of any Trade Secrets
following separation of her employment and represents that she promptly returned
to VistaCare all VistaCare property, materials, or information, whether
confidential or otherwise, at the time of or immediately following the last day
of employment with VistaCare. Xx. Xxxxxxxxx further acknowledges and agrees that
due to the unique services she has provided to VistaCare, she has knowledge of
Confidential Information that if disclosed or utilized would
result in the irreparable loss of VistaCare's goodwill and competitive position.
In order to protect VistaCare's goodwill and competitive position, and in
exchange for the consideration granted in this Release, Xx. Xxxxxxxxx agrees
that she will not compete, directly or indirectly, with VistaCare or its
affiliates until after December 31, 2001, whether as an owner, agent, employee,
director, officer, consultant or otherwise of a company or business in the same
or similar line of business as VistaCare and located anywhere within the United
States. This Agreement shall not prevent Xxxxxxxxx from contacting employers,
who may be competitors of Vistacare, from the date of signing this Agreement
until December 31, 2001 to secure employment after December 31, 2001.
4. NON SOLICITATION OF EMPLOYEES. Xx. Xxxxxxxxx agrees not to solicit,
induce, or encourage, or attempt to solicit, induce, or encourage, any VistaCare
employee to terminate his or her employment with VistaCare or to accept
employment with any competitor, supplier, or customer of VistaCare for a period
of six (6) months. For purposes of this provision, the term "solicit, induce, or
encourage" includes, but is not limited to: (a) initiating communications with a
VistaCare employee relating to possible employment; (b) offering bonuses or
additional compensation to encourage VistaCare employees to terminate their
employment with VistaCare and accept employment with a competitor, supplier or
customer of VistaCare; or (c) referring VistaCare employees to personnel or
agents employed by competitors, suppliers, or customers of VistaCare for the
purpose of potential employment with the competitor, supplier or customer.
5. CONFIDENTIALITY. Xx. Xxxxxxxxx agrees that the terms of this
Release, including the payment made hereunder, are confidential and shall not be
divulged to any third party except for Xx. Xxxxxxxxx'x tax advisor and/or her
attorney who shall be advised of this confidentiality provision.
6. LIQUIDATED DAMAGES - CONFIDENTIALITY. In the event that Xx.
Xxxxxxxxx violates any aspect of the Paragraph 5 of this Agreement, she
acknowledges that said breach shall cause damage to VistaCare, and Xx. Xxxxxxxxx
further agrees to be obligated to pay VistaCare the sum of sixty thousand
dollars ($60,000.00) for breach of the Confidentiality Agreement as liquidated
damages, an amount which the Parties have agreed upon as being a fair and
reasonable approximation of damages which are otherwise difficult to quantify.
7. NOTIFICATION. Xx. Xxxxxxxxx agrees to immediately notify, orally and
in writing the President and CEO or Vice President of Human Resources of
VistaCare if she is contacted by any federal, state, or local government agency
or body, or any individual or entity acting on behalf of a government agency or
body, regarding VistaCare or any events or individuals about which she may have
knowledge as a result of her employment with VistaCare. Xx. Xxxxxxxxx further
agrees to cooperate with VistaCare in any governmental investigations, audits,
or proceedings that relate to VistaCare or to its present or former employees,
officers, directors, independent contractors, or patients.
8. REMEDIES. Without limiting the remedies available to VistaCare, Xx.
Xxxxxxxxx acknowledges that a breach of paragraphs 3, 4, 5, 6, 7 and/or 8 of
this Release could result in irreparable injury to VistaCare for which there
would be no adequate remedy at law, and that, in the event of such a breach or
threat thereof, VistaCare will be entitled to obtain a temporary
restraining order and/or a preliminary injunction and a permanent injunction
refraining her from engaging in any activities prohibited by this Release or
such other equitable relief as may be required to enforce specifically any of
the terms of this Release.
9. GOVERNING LAW, FORUM SELECTION. This Release will be governed and
construed in accordance with the laws of the State of Arizona. Xx. Xxxxxxxxx
hereby irrevocably submits to the exclusive jurisdiction of the United States
District Court for the District of Arizona for any dispute arising out of or
relating to this Agreement and Xx. Xxxxxxxxx irrevocably agrees that all claims
in respect to such dispute or any suit, action, or proceeding related thereto
may be heard and determined in such court. Xx. Xxxxxxxxx irrevocably waives, to
the fullest extent permitted by applicable law, any objection she may now or
hereafter have to the laying of venue of any such dispute brought in any such
court.
10. CONSULTATION WITH ATTORNEY. Xx. Xxxxxxxxx hereby acknowledges that
she has consulted with her attorney of her own choosing, Xxx X. Xxxxxxxx, before
executing this Release.
11. ADEQUATE CONSIDERATION. Xx. Xxxxxxxxx acknowledges that she is
receiving adequate consideration for the rights and claims she is waiving under
this Release and for the obligations imposed upon her by virtue of this Release.
12. TIME TO CONSIDER SIGNING WAIVER. Xx. Xxxxxxxxx ahs been provided
twenty-one (21) days in which to review, sign, and return this Release. In
addition, she has seven (7) days after signing the Release to change her mind
and submit a written revocation of her agreement to this Release. Should Xx.
Xxxxxxxxx exercise her right to revoke under this provision, Xx. Xxxxxxxxx
agrees to repay any funds paid pursuant to this Release.
13. SEVERABILITY. Each provision, section, and subsection of this
Agreement is separable from every other provision, section, and subsection, and
constitutes a separate and distinct covenant. If any provision, section, or
subsection of this Agreement is adjudged by a court to be invalid, ineffective,
or unenforceable, in whole or in part, this adjudication shall not affect the
validity of the remainder of this Agreement, including any other provision,
section, or subsection. The invalid, ineffective, or unenforceable provision
will, without further action by the parties, be automatically amended to effect
the original purpose and intent of the invalid, ineffective, or unenforceable
provision.
14. COMPLETE AGREEMENT AND UNDERSTANDING. This Release embodies the
complete agreement and understanding between VistaCare and Xx. Xxxxxxxxx
concerning its subject matter, and supersedes and preempts any prior
understandings, agreements, or representations between them, whether written or
oral.
15. KNOWING AND VOLUNTARY EXECUTION. Having elected to sign this
Release and to fulfill the promises set forth herein, Xx. Xxxxxxxxx freely and
knowingly and after due reflection enters into this Release intending to waive
and release all claims she has or might now have against the Releasees. She
knowingly and voluntarily executes this Release on her own behalf and on behalf
of any heirs, agents, representatives, successors and assigns that she might
have now or in the future.
16. CHARACTERIZATION FOR TAX PURPOSES. Xxxxxxxxx acknowledges that she
will be exclusively liable for the payment of all federal, state, and local
taxes, if any, which may be due as a result of the monetary consideration
received pursuant to this Agreement. In addition, if Vistacare or its agents or
insurers are at any time held liable to pay any taxes or other amounts,
including, without limitation, penalties or interest, for failing to withhold
taxes on the payment made to Xxxxxxxxx pursuant to this Agreement, or on account
of Xxxxxxxxx failing to pay taxes on such payment, Xxxxxxxxx agrees to indemnify
VistaCare and the released parties and hold them harmless for payment of any
such taxes or other amounts.
17. RESIGNATION. Xxxxxxxxx'x employment record will reflect that she
voluntarily resigned from her position with VistaCare.
By:/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
Dated: 10/31/01
STATE OF ARIZONA
County of Maricopa
Subscribed and sworn to (or affirmed) before me this 31 day of
October, 2001.
/s/ Xxxx X. Xxxxxxxx
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Notary Public
My Commission Expires: May 27, 2004
