EQUITY AWARD TERMINATION AGREEMENT, RELEASE AND WAIVER NOTE: SIGNATURE MUST BE PROVIDED BELOW AND ON SCHEDULE A
Exhibit
10.2
EQUITY
AWARD
RELEASE
AND WAIVER
NOTE: SIGNATURE
MUST BE PROVIDED BELOW
AND
ON SCHEDULE A
This
Equity Award Termination Agreement, Release and Waiver (this
“Termination Agreement”) is made as of the date set forth on
the attached signature page by Xxxxxxx X. Xxxxxxxxx (the
“Employee”) and Odyssey HealthCare, Inc. (the
“Company”) with respect to certain unvested stock
option and
restricted stock unit awards previously awarded to Employee.
A. Surrender
and Cancellation of Surrendered Awards. Employee hereby
acknowledges that the Surrendered Awards (as defined in Section B.1. below)
are
being surrendered and cancelled in connection with Employee’s resignation as
Senior Vice President and Chief Operating Officer (the
“Resignation”) in accordance with the Agreement, dated as of
June 29, 2007, by and among the Company and the Employee (the
“Resignation Agreement”). Such Surrendered Awards
will be surrendered and cancelled on the terms and subject to the conditions
set
forth in this Termination Agreement. Notwithstanding anything to the
contrary herein, nothing contained in this Termination Agreement shall
constitute a surrender by Employee of any rights, title or interest awarded
to
her pursuant to any of the equity award agreements described in Exhibit B
to the Resignation Agreement (other than the Surrendered Awards), including
but
not limited to Employee’s option to purchase 22,500 shares of the Company’s
common stock that was awarded as part of that certain Nonstatutory Stock
Option
Agreement, dated November 16, 2005, and that vested on November 16, 2006
(the
“Retained Awards”).
B. Consideration.
1. The
Employee hereby surrenders for cancellation to the Company all of the Employee’s
rights, title and interest in and to all stock options, restricted stock
units,
and/or other equity awards that are listed on Schedule A attached hereto
(the “Surrendered Awards”), which were awarded by the Company
to the Employee pursuant to the terms and conditions contained in the respective
equity award agreements also listed on Schedule A (the “Equity
Agreements”). The Employee and the Company acknowledge and
agree that the Surrendered Awards shall be cancelled and the Termination
Agreement shall be executed by Employee in exchange for the covenants and
promises set forth in the Resignation Agreement (the
“Consideration”). Receipt of such Consideration by
the Employee will be subject to receipt by the Company of this Termination
Agreement, surrendering and canceling the Surrendered
Awards. Notwithstanding the foregoing, this Termination Agreement
shall not be effective until the effective time of the Resignation Agreement
(the “Effective Time”), and this Termination Agreement shall be
of no effect if the Resignation Agreement is not executed by the parties.
The Employee, to the greatest extent permitted by law,
hereby acknowledges that the Consideration to be received pursuant to this
Termination Agreement shall be in full satisfaction of any and all rights
the
Employee may have under the Equity Agreements or otherwise with respect to
each
and every Surrendered Award. Each Surrendered Award shall be deemed
at any time after the date the Employee executes and delivers this Termination
Agreement to the Company to represent for all purposes only the right to
receive
the Consideration.
2. The
Employee acknowledges that all Consideration to be received pursuant to this
Termination Agreement will be made as provided in this Termination Agreement
or
in the Resignation Agreement.
3. By
executing and delivering this Termination Agreement, the Employee represents,
warrants, covenants and agrees as follows:
(a) The
Employee has the right, power, authority and capacity to execute, deliver
and
perform this Termination Agreement and to consummate the transactions
contemplated hereby. This Termination Agreement has been duly and
validly executed and delivered by the Employee and constitutes the Employee’s
valid and binding obligation, enforceable in accordance with its terms and
conditions, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or
other similar laws now or hereafter in effect relating to creditors’ rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
(b) The
Employee has the exclusive right, power and authority to transfer or surrender
the Surrendered Awards. Except for the Equity Agreements, the
Employee is not a party to, nor is bound by, any agreement affecting or relating
to the Employee’s right to transfer or surrender the Surrendered
Awards.
(c) Neither
the Company nor any other person or entity has made any oral or written
representation, inducement, promise or agreement to Employee in connection
with
the termination of the Surrendered Awards, other than as expressly set forth
in
this Termination Agreement.
(d) Notwithstanding
any provisions of the Surrendered Awards and the Equity Agreements, Employee
hereby covenants and agrees that she will not sell, assign, transfer, pledge,
hypothecate or otherwise encumber any of the Surrendered Awards from and
after
the date of this Termination Agreement. Any sale, assignment,
transfer, pledge, hypothecation or other encumbrance in violation of this
Section B.3(d) shall be void.
C. Release
and Waiver. The Employee, on behalf of
herself and on behalf of all spouses, heirs, predecessors, successors, assigns,
representatives or agents of the Employee (including, without limitation,
any
trust of which the Employee is the trustee or which is for the benefit of
the
Employee or a member of her family), hereby (1) acknowledges that the
Consideration received pursuant to this Termination Agreement is in full
satisfaction of any and all rights the Employee may have under the Equity
Agreements and/or otherwise with respect to the Surrendered Awards, and
(2) releases and forever discharges the Company and each of its respective
individual, joint or mutual, past, present and future affiliates, directors,
officers, employees, agents, consultants, advisors and other representatives,
including legal counsel, accountants and financial advisors, controlling
persons
or entities, subsidiaries, predecessors, successors and assigns (individually,
a
“Releasee” and collectively, the “Releasees”)
from any and all claims, demands, actions, arbitrations, audits, hearings,
investigations, litigations, suits (whether civil, criminal, administrative,
investigative or informal), causes of action, orders, obligations, contracts,
agreements, debts and liabilities whatsoever, whether known or unknown,
suspected or unsuspected, both at law and in equity, which the Employee now
has,
has ever had or may hereafter have against the respective Releasees on account
of or arising out of or under the Equity Agreements or the acts or omissions
of
the Company or its officers or directors with respect to the Surrendered
Awards
prior to the Effective Time and/or otherwise with respect to the Surrendered
Awards, at anytime heretofor and for all time hereafter, except for any claims
the Employee might have arising under this Termination Agreement. The
Employee hereby also irrevocably covenants to refrain from, directly or
indirectly, asserting any claim or demand, or commencing, instituting or
causing
to be commenced, any action, arbitration, audit, hearing, investigation,
litigation or suit (whether civil, criminal, administrative, investigative
or
informal) of any kind against any Releasee, based upon any matter purported
to
be released hereby. The Employee understands and agrees that it is
expressly waiving all claims against the Releasees concerning the Equity
Agreements or the acts or omissions of the Company or its officers or directors
with respect to the Surrendered Awards prior to the Effective Time and/or
otherwise with respect to the Surrendered Awards, including, but not limited
to,
those claims that it may not know of or suspect to exist, which if known
or
suspected, may have materially affected the decision to provide the release
and
the Employee expressly waives any rights under applicable law that provide
to
the contrary.
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D. Surrender
of Equity Agreements. The Employee further agrees that
the Equity Agreements are hereby surrendered as of the Effective Time with
no
further obligations of the Company thereunder except as provided herein,
and in
recognition thereof the Employee agrees to return such Equity Agreements
to the
Company. The Employee further acknowledges that the Employee is aware
of the Resignation and does hereby waive all requirements under the Equity
Agreements and, by execution of this Termination Agreement, hereby waives
and
relinquishes any and all right to the Surrendered Awards on or after the
Effective Time. The Employee understands that the surrender of the
Equity Agreements and the Surrendered Awards pursuant to the procedures
described herein and the acceptance thereof will constitute a binding agreement
between the Employee and the Company upon the terms and subject to the
conditions of this Termination Agreement.
E. Absence
of Liens; No Other Awards. The Employee represents and
warrants that the Employee holds good and valid title to the Surrendered
Awards,
free and clear of all claims, liens, restrictions, charges, encumbrances,
security interests, voting agreements and commitments of any kind and has
full
power and authority to surrender for cancellation such Surrendered
Awards. Other than the Surrendered Awards listed on Schedule A
attached hereto and the Retained Awards, the Employee holds no other options
or
rights to purchase or receive shares of Company under any plan, award, grant
or
agreement, and hereby waives and releases any rights she may have to be issued
any additional awards to purchase or receive shares of the Company’s
stock. The Surrendered Awards have not been transferred or assigned
by Employee to any person or entity and Employee has not entered into any
agreement to transfer or assign such Surrendered Awards to any person or
entity.
F. Acknowledgement. THE
EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS READ AND UNDERSTANDS THIS
TERMINATION AGREEMENT, IS FULLY AWARE OF ITS LEGAL EFFECT, HAS NOT ACTED
IN
RELIANCE UPON ANY REPRESENTATIONS OR PROMISES MADE BY THE COMPANY OR ANY
OTHER
PERSON OTHER THAN THOSE CONTAINED IN WRITING HEREIN, AND HAS ENTERED INTO
THIS
TERMINATION AGREEMENT FREELY BASED ON THE EMPLOYEE’S OWN JUDGMENT. BY
EXECUTING THIS TERMINATION AGREEMENT, THE EMPLOYEE EXPRESSLY REPRESENTS THAT
THE
EMPLOYEE HAS HAD AN OPPORTUNITY TO SEEK LEGAL COUNSEL REGARDING
IT.
3
G. Schedule
of Surrendered Awards. The Employee represents and
warrants that Schedule A correctly and completely sets forth each and
every award of stock options, restricted stock units, and/or other equity,
previously granted to the Employee by the Company other than the Retained
Awards
and that, other than the Retained Awards, the Employee does not have the
right
to acquire or receive any stock of the Company or any affiliate of the Company
or any options, warrants or other rights to acquire shares of capital stock
of
or equity interests in the Company or any affiliate of the Company, or similar
securities or contractual obligations the value of which is derived from
the
value of an equity interest in the Company or any affiliate of the Company,
or
securities convertible into or exchangeable for capital stock of or equity
interests in, or similar securities or contractual obligations of, the Company
or any affiliate of the Company. SCHEDULE
A MUST BE SIGNED BY THE EMPLOYEE AS EVIDENCE OF
ACKNOWLEDGEMENT OF THE SURRENDERED AWARDS BEING TERMINATED AND MUST BE RETURNED
TOGETHER WITH THIS TERMINATION AGREEMENT TO THE COMPANY.
H. Delivery
and Further Assurances. This Termination Agreement and
Schedule A, when each are executed, should be delivered to:
| Odyssey HealthCare, Inc. | |
| 000 X. Xxxxxxx, Xxxxx 0000 | |
| Xxxxxx, Xxxxx 00000 | |
| Attn: General Counsel |
The
method
of delivery of the Termination Agreement and Schedule A is at the option
and risk of the Employee and valid delivery will be deemed made only when
actually received by the Company. The Employee, upon request, will
execute and deliver any additional documents deemed by the Company or any
of its
affiliates to be reasonably necessary or desirable to complete the surrender
of
the Surrendered Awards surrendered hereby.
I. Amendments
and Waivers. Any provision of this Termination Agreement
may be amended or waived if, and only if, such amendment or waiver is in
writing
and signed by the Company and the Employee.
J. Binding
Nature. This Termination Agreement shall be binding upon
and shall inure to the benefit of the Company and the Employee and, in the
case
of the Employee, shall also be binding upon and shall inure to the benefit
of
the Employee’s spouses, heirs, predecessors, successors, assigns,
representatives or agents (including, without limitation, any trust of which
the
Employee is the trustee or which is for the benefit of the Employee or a
member
of her family). The Employee intends for the authorizations and
agreements in this Termination Agreement to remain in force and not be affected
if the Employee subsequently dies or becomes mentally or physically disabled,
incapacitated or incompetent, and does hereby direct that no filing of an
inventory nor posting of a surety bond be required.
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K. Governing
Law. This Agreement shall be governed by the laws of the
State of Texas, excluding choice of law principles.
L. Counterparts. This
Termination Agreement may be executed and delivered (including by facsimile
transmission) in any number of counterparts, each of which shall be an original,
but all of which together shall constitute one and the same
instrument. Any counterpart of this Termination Agreement that has
attached to it separate signature pages that together contain the signature
of
all parties hereto shall for all purposes be deemed a fully executed
original. Facsimile signatures shall constitute original
signatures.
M. Severability. If
any provision of this Termination Agreement is held to be illegal, invalid
or
unenforceable for any reason, such provision shall be fully severable; this
Termination Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a portion of this
Termination Agreement; and the remaining provisions of this Termination
Agreement shall remain in full force and effect and shall not be affected
by the
illegal, invalid or unenforceable provision or by its severance from this
Termination Agreement. Furthermore, in lieu of such illegal, invalid
or unenforceable provisions, there shall be added automatically as part of
this
Termination Agreement a provision as similar in terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable.
N. Construction. This
Termination Agreement shall be deemed drafted equally by all the
parties. Its language shall be construed as a whole and according to
its fair meaning. Any presumption or principle that the language is
to be construed against any party shall not apply. The headings in
this Termination Agreement are only for convenience and are not intended
to
affect construction or interpretation. Any references to paragraphs,
subparagraphs, or sections are to those parts of this Termination Agreement,
unless the context clearly indicates to the contrary. Also, unless
the context clearly indicates to the contrary, (i) the plural includes the
singular and the singular includes the plural, (ii) “and” and “or” are each used
both conjunctively and disjunctively, (iii) “any,” “all,” “each,” or “every”
means “any and all, and each and every,” (iv) “includes” and “including” are
each “without limitation,” and (v) “herein,” “hereof,” “hereunder,” and other
similar compounds of the word “here” refer to the entire Termination Agreement
and not to any particular paragraph, subparagraph, section or
subsection.
O. Expenses. Except
as otherwise expressly provided in this Termination Agreement, all costs
and
expenses (including attorneys fees and expenses) incurred by the parties
hereto
in connection with this Termination Agreement and the transactions contemplated
hereby shall be borne solely and entirely by the party which has incurred
such
expenses.
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P. Arbitration. The
Company and the Employee agree to the resolution by binding arbitration of
all
claims, demands, causes of action, disputes, controversies or other matters
in
question (“Claims”), whether or not arising out of this
Termination Agreement, whether sounding in contract, tort or otherwise and
whether provided by statute or common law, that the Company may have against
the
Employee or that the Employee may have against the Company or its parents,
subsidiaries and affiliates, and each of the foregoing entities’ respective
officers, directors, employees or agents in their capacity as such or
otherwise. Claims covered by this Section P also include claims by
Employee for breach of this Termination Agreement, wrongful termination,
discrimination (based on age, race, sex, disability, national origin, or
any
other factor) and retaliation. The Company and Employee agree that
any arbitration shall be in accordance with the Federal Arbitration Act
(“FAA”) and, to the extent an issue is not addressed by the
FAA, with the then-current National Rules for the Resolution of Employment
Disputes of the American Arbitration Association (“AAA”) or
such other rules of the AAA as are applicable to the Claims being
arbitrated. If a party refuses to honor its obligations under this
Section P, the other party may compel arbitration in either federal or state
court. The arbitrator shall apply the substantive law of the State of
Texas (excluding Texas choice-of-law principles that might call for the
application of some other state’s law), or federal law, or both as applicable to
the Claims asserted. The arbitrator shall have exclusive authority to
resolve any dispute relating to the interpretation, applicability,
enforceability, or formation of this Section P, including any Claim that
all or
part of this Termination Agreement is void or voidable and any Claim that
an
issue is not subject to arbitration; provided that the arbitrator will not
have
the power to add or ignore any of the terms and conditions of this Termination
Agreement, and the arbitrator’s decision will not go beyond what is necessary
for the interpretation, application, and enforcement of this Termination
Agreement and the obligations of the parties pursuant to this Termination
Agreement. The parties agree that venue for arbitration will be in
Dallas, Texas, and that any arbitration commenced in any other venue will
be
transferred to Dallas, Texas, upon the written request of any party to this
Termination Agreement. In the event that an arbitration is actually
conducted pursuant to this Section P, the party in whose favor the arbitrator
renders the award shall be entitled to recover from the other party all costs
and expenses incurred, including reasonable attorneys’ fees, expert witness
fees, and costs actually incurred. Any and all of the arbitrator’s
orders, decisions, and awards may be enforceable in, and judgment upon any
award
rendered by the arbitrator may be confirmed and entered by, any federal or
state
court having jurisdiction. All proceedings conducted pursuant to this
Section P, including any order, decision, or award of the arbitrator, shall
be
kept confidential by all parties. THE ARBITRATORS SHALL HAVE
NO AUTHORITY TO AWARD PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES (WHETHER IT
BE
EXEMPLARY DAMAGES, TREBLE DAMAGES, OR ANY OTHER PENALTY OR PUNITIVE TYPE
OF
DAMAGES). REGARDLESS OF WHETHER SUCH DAMAGES MAY BE AVAILABLE UNDER
TEXAS LAW, THE EMPLOYEE AND THE COMPANY EACH HEREBY WAIVE THE RIGHT, IF ANY,
TO
RECOVER PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIMS. THE EMPLOYEE
AND THE COMPANY ACKNOWLEDGE THAT, BY SIGNING THIS TERMINATION AGREEMENT,
THE
EMPLOYEE AND THE COMPANY ARE WAIVING ANY RIGHT THAT THE EMPLOYEE OR THE COMPANY
MAY HAVE TO A JURY TRIAL OR A COURT TRIAL OF ANY EMPLOYMENT-RELATED CLAIM
ALLEGED BY EMPLOYEE, EXCEPT AS PROVIDED BY THE RESIGNATION
AGREEMENT.
[SIGNATURE
PAGE FOLLOWS]
6
IN
WITNESS WHEREOF, the Company has
caused this Termination Agreement to be executed by its duly authorized officer,
and the Employee, to evidence her agreement to all the terms hereof, has
duly
executed this Termination Agreement, as of the 29th day of June,
2007.
| ODYSSEY HEALTHCARE, INC. | |||
| By: | /s/ Xxxxxx X. Xxxxxx | ||
| Name: | Xxxxxx X. Xxxxxx | ||
| Title: | President and Chief Executive Officer | ||
| EMPLOYEE | |||
| /s/ Xxxxxxx X. Xxxxxxxxx | |||
| XXXXXXX X. XXXXXXXXX | |||
S-1
SCHEDULE
A
SURRENDERED
AWARDS
|
1.
|
Restricted
Stock Unit Award Agreement (Time-Based RSU Award), dated December
20,
2006, representing the right to receive 16,080 shares of the Company’s
common stock
|
|
2.
|
Restricted
Stock Unit Award Agreement (Additional Incentive Based RSU Award),
dated
December 20, 2006, representing the right to receive 29,480 shares
of the
Company’s common stock
|
|
3.
|
Nonstatutory
Stock Option Agreement, dated November 16, 2005, representing the
right to
acquire 90,000 shares of the Company’s common stock, but only as to those
67,500 shares of the Company’s common stock that were unvested as of July
1, 2007.
|
| ODYSSEY HEALTHCARE, INC. | |
| /s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx, President and CEO | |
| EMPLOYEE: | |
| /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx |
A-1
