EXHIBIT 10.10
NONCOMPETITION AGREEMENT
This
Noncompetition Agreement (this “Agreement”) is dated as
of the 5th day of May, 2006 (the “Effective Date”) by
and between William Jeffrey Ingram (the “Executive”)
and Apria Healthcare Group Inc. (the
“Company”).
RECITALS
WHEREAS,
concurrently herewith, the Executive is entering into an Amended
and Restated Severance Agreement with the Company dated as of the
5th day of May, 2006 (the “Severance Agreement”);
and
WHEREAS,
the Executive and the Company hereby intend to enter into certain
agreements pertaining to the protection of the Company’s
confidential information and its business by causing the Executive
to agree to satisfy certain obligations to perform and refrain from
performing certain acts prior to and following the termination of
the Executive’s employment with the Company, and for the
Company to pay consideration to the Executive in exchange for the
agreement by the Executive to take and refrain from taking certain
actions following such termination of employment.
AGREEMENT
1. Acknowledgements by
the Executive . The Executive acknowledges that:
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(a) In carrying out his
duties and responsibilities to the Company, the Executive is a
member of the Company’s senior executive management and
participates in formulating and implementing business plans and
policies that are and will continue to be essential to the
Company’s competitive success;
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(b)
These activities require relationships of trust and confidence
between the Executive and the Company’s other officers and
the Company’s directors;
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(c)
The Executive, in the performance of his duties on behalf of the
Company, has had and will have access to, has received and will
receive, and was entrusted and will be entrusted with confidential
information, including but not limited to systems technology, field
operations, reimbursement, development, marketing, organizational,
financial, management, administrative, clinical, customer,
distribution and sales information, data, specifications and
processes owned 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 was and will be made
available to the Executive in confidence;
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(d)
The Executive’s employment with a competitor of the Company
within a reasonable time following the termination of his
employment with the Company would create a substantial likelihood
that the Executive would inevitably disclose or use, to the
detriment of the Company, such Confidential Information, and that
it is essential to the Company’s legitimate business
interests and also to free and fair competition in the industry
within which the Company does business, to protect the
Company’s Confidential Material from disclosure;
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(e)
The risk of inevitable disclosure is particularly applicable to any
such employment by the Executive in a similar senior position with
those competitors of the Company that are similar in operation,
service, missions and markets to the Company (“Principal
Competitors”), and that as of the date of this Agreement the
Principal Competitors are: Lincare Holdings, Inc.; Rotech
Healthcare, Inc.; American HomePatient, Inc.; Coram Healthcare
Corporation; Option Care, Inc.; Pacific Pulmonary Services
Corporation; LifeCare Solutions, Inc.; or the home healthcare
business of Air Products & Chemicals, Inc. or Praxair, Inc. and
their parent, affiliated and subsidiary companies; and
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(f)
Following a change in ownership or control of the Company, there is
a heightened risk that the Executive’s employment by a
Principal Competitor could cause substantial harm to the Company as
a result of the inherent instability of any enterprise following a
change in ownership or control.
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2. Noncompetition
Agreement . The Executive hereby acknowledges, represents,
warrants and covenants that:
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(a)
In order avoid the disclosure by the Executive of the
Company’s trade secrets or other Confidential Material to
those businesses that could most adversely affect the performance
of the Company, the Executive promises and agrees that, during the
period of his employment by the Company and, in the event that the
Executive’s employment terminates within the period that
(i) begins with the first to occur of (1) the initial
public announcement of a Change of Control (as defined in the
Severance Agreement), or (2) the 90th day preceding a Change
of Control and (ii) ends two years following such Change of
Control, for a period of one year thereafter (the
“Post-Termination Period”), he will not enter business
with or work with or for, whether as an employee, consultant or
otherwise, any Principal Competitor.
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(b)
During the term of his employment and during the Post-Termination
Period, the Executive will not influence or attempt to influence
customers, patients, or referral sources of the Company or any of
its present or future subsidiaries or affiliates, either directly
or indirectly, to divert their business to any Principal
Competitor.
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3. Agreement to
Compensate the Executive .
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(a)
The parties agree that, in the event that within the period that
(i) begins with the first to occur of (1) the initial
public announcement of a Change of Control (as defined in the
Severance Agreement), or (2) the 90th day preceding a Change
of Control and (ii) ends two years following such Change of
Control, the Executive’s employment is terminated by the
Company for any reason other than disability or Cause (as defined
in the Severance Agreement), or in the event that the Executive
terminates his employment with the Company with Good Reason (as
defined in the Severance Agreement) during said period, the
Executive shall be entitled to receive payments that equal $750,000
in the aggregate, it being understood that (A) such payments are
intended to compensate the Executive fully for the performance of
the covenants of the Executive during the Post-Termination Period
provided in Section 2 above, and (B) the Executive is not
entitled to receive any payments under this Section 3 in the event
the Executive’s employment is terminated other than under one
of the circumstances described in this
Section 3(a).
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(b)
The payment payable to the Executive pursuant to Section
3(
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