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EXHIBIT 10.30
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into by and between
APRIA HEALTHCARE GROUP INC. (the "Company") and XXXXXXXX X. XXXXX (the
"Executive"), as of the 26th day of January, 1998.
I. EMPLOYMENT.
The Company hereby employs the Executive and the Executive hereby accepts
such employment, upon the terms and conditions hereinafter set forth, from
January 26, 1998, to and including January 18, 2001. The period of employment
covered by this Agreement shall be automatically extended for an additional year
until January 18, 2002, unless either party shall send the other a notice prior
to October 1, 2000, declining to accept such extension.
II. DUTIES.
A. The Executive shall serve during the course of his employment as the
President and Chief Operating Officer of the Company, reporting to the Chief
Executive Officer, provided, however, that in the event of a vacancy in the
position of Chief Executive Officer, he shall also assume the duties of the
Chief Executive Officer for such period of time as may be requested by the Board
of Directors. He shall have responsibility for all operating field management,
the corporate-wide sales, marketing and revenue management functions and such
other duties and responsibilities as shall be determined from time to time by
the Chief Executive Officer or the Board of Directors of the Company.
B. The Executive agrees to devote substantially all of his time, energy and
ability to the business of the Company. Nothing herein shall prevent the
Executive, upon approval of the Board of Directors of the Company, from serving
as a director or trustee of other corporations or businesses which are not in
competition with the business of the Company or in competition with any present
or future affiliate of the Company. Nothing herein shall prevent the Executive
from investing in real estate for his own account or from becoming a partner or
a stockholder in any corporation, partnership or other venture not in
competition with the business of the Company or in competition with any present
or future affiliate of the Company.
III. COMPENSATION.
A. The Company will pay to the Executive a base salary at the rate of
$400,000 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's Board of Directors or its Compensation Committee.
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 other
executives of the Company, including
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without limitation the Company's Incentive Compensation Plan at the 40% target
level, with eligibility for over-achievement up to 80% of base salary.
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 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 connection 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 other executives 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. Stock Options.
(a) Within five days following the execution and delivery of this
Agreement, the Company shall deliver to the Executive a signed amendment to his
stock option agreement dated November 7, 1997, providing that (i) the 30,000
share portion of that option originally scheduled to vest and become exercisable
on July 1, 1998, shall instead vest and become exercisable on January 26, 1998,
and (ii) all vested portions of that option shall remain exercisable for a
period of three years following any termination of the Executive's employment
other than for Cause.
(b) No later than the first to occur of (i) the date on which stock options
are next granted to other officers and key employees of the Company, or (ii)
March 31, 1998, the Company shall grant and deliver to the Executive one or more
stock option agreements
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evidencing the Executive's right to purchase a total of 150,000 shares of the
Company's common stock at a price per share equal to the closing price of such
stock on the New York Stock Exchange on the date of such grant. Such stock
options shall have a ten-year term, shall become exercisable in five equal
annual installments of 30,000 shares each beginning with the first installment
becoming exercisable on January 26, 1999, and shall otherwise be consistent with
the form of stock options generally provided to the Company's executives, except
that such options shall also provide that (i) in the event the Executive's
employment is terminated other than for Cause and other than pursuant to Section
V hereof, all unvested portions of said options shall immediately vest and
become exercisable, (ii) in the event the Executive's employment is terminated
pursuant to Section V hereof, one half of the unvested portions of said options
shall immediately vest and become exercisable, and (iii) all vested portions of
such options shall remain exercisable for a period of three years following any
termination of the Executive's employment other than for Cause.
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 XVIII of 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; refusal or unwillingness 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 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
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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 Chairman of the Board or Chief Executive
Officer stating that the Board of Directors of the Company has determined that
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 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; and (b) payment to the Executive or his estate or
beneficiary, as applicable, any amounts due pursuant to the terms of any
applicable welfare benefit plans.
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 and subsequent to June 30, 1998,
(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), this Agreement shall
terminate and the Executive shall be entitled to receive a severance
payment payable in one lump sum upon the termination of his employment in
an amount equal to 300% of his Annual Compensation (as defined below). If,
during the term of this Agreement and prior to July 1, 1998, (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), this Agreement shall terminate and the
Executive shall be
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entitled to receive a severance payment payable in one lump sum upon the
termination of his employment in an amount determined as follows:
If Executive's employment is Executive shall receive the following
terminated during the month of: percentage of his Annual Compensation:
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January, 1998 200.0%
February, 1998 216.7%
Xxxxx, 0000 233.3%
April, 1998 250.0%
May, 1998 266.7%
June, 1998 283.3%
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
obligation to provide the benefits required by Section IV-D-3(d) below, and
except that the Company will also pay to the Executive any Accrued
Obligations (as defined in Section IV-D-1).
(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 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's Board of Directors or Chief Executive Officer
does not permit the Executive to continue to serve as the
President and Chief Operating Officer with the responsibilities
as described in Section II-A or another mutually acceptable
senior executive position.
(c) The term "Annual Compensation" means an amount equal to the Executive's
annual base salary at the rate in effect on the date on which the Executive
received or gave written notice of his termination, plus the sum of (i) an
amount equal to the average of the Executive's two most recent annual
bonuses, if any, received under the Company's Incentive Compensation Plan
prior to the notice of termination, (ii) the
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Executive's annual car allowance, if any, and (iii) 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 amount is hereby initially determined
to be $5,000. In the event that the Executive's bonus for one of the two
calendar years preceding the calendar year in which the Executive receives
or gives written notice of termination was a prorated bonus due to
Executive having worked a partial year, then solely for purposes of
calculating Annual Compensation, the Executive's prorated bonus will be
recalculated to reflect the bonus the Executive would have received had the
Executive worked for the entire year. In the event that such notice of
termination is received or given by the Executive prior to the first date
subsequent to the commencement of the Executive's employment by the Company
on which annual bonuses are generally paid to other executives of the
Company, then solely for purposes of calculating Annual Compensation, the
Executive's average of his two most recent annual bonuses shall be deemed
to be his applicable target bonus pursuant to Section III-B, with no
over-achievement.
(d) In the event of any termination of the Executive's employment pursuant
to Section IV-D-3(a) or pursuant to Section V, the Company shall, for a
period of one year following the termination date, provide the Executive
with appropriate office space in a furnished office suite, including
reasonable secretarial, telephone, copying and delivery services. The
Company shall not be required to spend more than a total of $50,000 to
provide this benefit to 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. SPECIAL SEVERANCE OPTION.
In the event that the Company employs a new Chief Executive Officer and the
Executive continues to work in good faith as the President and Chief Operating
Officer for a period of six months, then at any time during the three-month
period following the expiration of such six months, the Executive shall have the
right to terminate his employment by sending the Chairman and the Chief
Executive Officer a written notice terminating his employment pursuant to this
Section V on a date not less than 30 days subsequent to the date of such notice.
In such event, this Agreement and the Executive's employment shall terminate on
the date specified, and the Executive shall be entitled to receive a severance
payment payable in one lump sum upon the termination of his employment in an
amount equal to 150% of his Annual Compensation (as defined in Section
IV-D-3(c)). Any payment made pursuant to this Section V 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
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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 obligation to provide the benefits required by
Section IV-D-3(d), and except that the Company will also pay to the Executive
any earned but unused vacation time at the rate of pay in effect on the date of
the notice of termination.
VI. 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. 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 VII, VIII, or IX 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 fees and
expenses of the arbitrator shall be borne by the Company.
VII. ANTISOLICITATION.
The Executive promises and agrees that during the term of this Agreement
(including any renewal) and for a period of one year thereafter, he will not
influence or attempt to influence customers of the Company or any of its present
or future subsidiaries or affiliates, either directly or indirectly, to divert
their business to any individual, partnership, firm, corporation or other entity
then in competition with the business of the Company or any subsidiary or
affiliate of the Company.
VIII. SOLICITING EMPLOYEES.
The Executive promises and agrees that, for a period of one year 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.
IX. 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,
reimbursement, development, marketing,
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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 previous 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.
X. PARACHUTE LIMITATION.
Notwithstanding any other provision of this Agreement, the Executive shall
not have any right to receive any payment or other benefit under this Agreement,
any other agreement, or any benefit plan if such right, payment or benefit,
taking into account all other rights, payments or benefits to or for the
Executive under this Agreement, all other agreements, and all benefit plans,
would cause any right, payment or benefit to the Executive under this Agreement
to be considered a "parachute payment" within the meaning of Section 280G(b)(2)
of the Internal Revenue Code as then in effect (a "Parachute Payment"). In the
event that the receipt of any such right or any other payment or benefit under
this Agreement, any other agreement, or any benefit plan would cause the
Executive to be considered to have received a Parachute Payment under this
Agreement, then the Executive shall have the right, in the Executive's sole
discretion, to designate those rights, payments or benefits under this
Agreement, any other agreements, and/or any benefit plans, that should be
reduced or eliminated so as to avoid having the right, payment or benefit to the
Executive under this Agreement be deemed to be a Parachute Payment.
XI. SUCCESSORS.
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A. This Agreement is personal to the Executive and shall not, without the
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.
XII. 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.
XIII. MODIFICATION.
This Agreement may not be amended or modified other than by a written
agreement executed by the Executive and the Company's Chairman or Chief
Executive Officer.
XIV. SAVINGS CLAUSE.
If any provision of this Agreement or the application thereof is held
invalid, such invalidity shall not affect any other provisions or applications
of the 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.
XV. 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, including without limitation the Executive's Employment Agreement dated
November 7, 1997. 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.
XVI. 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
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enforced in accordance with, and governed by, by the laws of the State of
California without regard to principles of conflict of laws.
XVII. 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.
XVIII. 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 0000 Xxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
or addressed to the Company at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000,
Attention: Chief Executive Officer, with a copy to the attention of the Senior
Vice President, Human Resources. Either party may change the address at which
notice shall be given by written notice given in the above manner.
XIX. 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.
XX. 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 ---------------------------- ------------------------------
Xxxxxx X. Xxxxxxx Xxxxxxxx X. Xxxxx
Chairman
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