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Exhibit 10.27
FINAL
SEPARATION AND TRANSITION AGREEMENT
This Separation and Transition Agreement (this “Agreement”) is by and among Rodney D. Windley (the “Executive”), Aveanna Healthcare LLC (f/k/a BCPE Eagle Buyer LLC) (the “Subsidiary”) and Aveanna Healthcare Holdings Inc., a Delaware corporation and successor to Pediatric Services of America, Inc. (“Holdings,” and together with the Subsidiary, collectively, the “Company”). The Subsidiary, Holdings and the Executive are sometimes referred to individually herein as a “Party” and collectively as the “Parties.”
WHEREAS, the Executive is currently employed as Executive Chairman of the Company and also serves as a director and chairman of the Board of Directors of the Company (the “Board”), pursuant to that certain Amended and Restated Employment Agreement, by and among the Executive, the Subsidiary and Holdings, dated as of March 15, 2017, as amended pursuant to that certain First Amendment to Amended and Restated Employment Agreement, by and among the same parties, dated January 23, 2018 (collectively, the “Employment Agreement”);
WHEREAS, capitalized terms used but not otherwise defined herein shall have the meaning ascribed thereto in the Employment Agreement;
WHEREAS, the Executive has informed the Company of the Executive’s decision to resign and terminate his employment with the Company; and
WHEREAS, the Parties wish to document the terms and conditions of the Executive’s transition out of, and separation from, the Executive’s employment with the Company.
NOW, THEREFORE, for the promises and covenants set forth herein and for such other good and valuable consideration, the receipt of which is hereby acknowledged, the Executive, the Subsidiary and Holdings enter into this Agreement on the following terms and conditions:
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will receive the following severance payments and benefits (collectively, the “Severance Benefits”), in addition to the Executive’s Accrued Benefits: (A) twelve (12) months of continued Base Salary payments following the Separation Date, payable in equal installments in accordance with the Company’s regular payroll practices; provided, that the first installment payment shall not be paid until the first payroll date following the Release Effective Date, and such first installment payment shall include all amounts that would have been paid to the Executive, during the period beginning on the Separation Date and ending on the date of the first installment payment, absent the delay (for the avoidance of doubt, without interest); (B) a lump sum cash payment in the amount of $750,000, which equals the amount paid to the Executive in respect of the Executive’s 2021 Annual Bonus, payable at the same time as 2023 annual bonuses are paid to other senior executives of the Company (i.e., the spring of 2024); and (C) subject to the Executive’s (I) timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (II) continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s medical and dental plans, on the same basis (including cost) as active employees participate in such plans, until the earlier of (x) the Executive’s eligibility for any such coverage under another employer’s medical or dental insurance plans and (y) the second anniversary of the Separation Date, except that in the event that participation in any such plan is barred or would adversely affect the tax status of the plan pursuant to which the coverage is provided, the Company shall pay the premium required to continue such coverage pursuant to COBRA (the “COBRA Premium”), and to the extent such COBRA period expires, the Company shall pay the lesser of (1) the COBRA Premium and (2) the premium required to continue such coverage after COBRA coverage is converted into individual plan(s). For the avoidance of doubt, the Executive’s Accrued Benefits include reimbursement for the Executive’s business expenses incurred in the ordinary course of business through the Separation Date, subject to the applicable Company policy as in effect from time to time, and an Annual Bonus for 2022, but only to the extent earned based on actual performance pursuant to the annual bonus plan terms currently in effect, payable (if earned) at the same time as 2022 annual bonuses are paid to other senior executives of the Company (i.e., spring of 2023).
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with their terms on their respective original settlement dates (and not on the Separation Date). Notwithstanding the foregoing, all outstanding Equity Awards (whether vested or unvested) will be immediately forfeited for no consideration if the Executive engages in conduct that violates any restrictive covenant in respect of the Executive’s Continuing Obligations, or that would violate any restrictive covenant in respect of the Executive’s Continuing Obligations if the covenant or obligation had not expired in accordance with its terms.
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Executive is responsible for paying all federal, state and local income or business taxes, including estimated taxes, self-employment taxes and any other taxes, fees, additions to tax, interest or penalties that may be assessed, imposed or incurred as a result of the amounts paid to the Executive pursuant to this Section 3 or otherwise that are in connection with the Executive’s Board Role, and the Executive shall indemnify Holdings and its affiliates against all such taxes or contributions, including penalties and interest, resulting from any failure by the Executive to pay.
(ii) the “Restricted Period” in respect of the Restrictive Covenants set forth in the Employment Agreement shall end on the twenty-four (24)-month anniversary of the Board Term (and not on the twelve (12)-month anniversary of the Board Term). Notwithstanding the terms of the Employment Agreement and the Company’s election to extend the Restricted Period to the twenty-four (24)-month anniversary of the Board Term, the Executive hereby acknowledges that the Executive will only be eligible to receive the Severance Benefits as set forth in Section 2 of this Agreement and not the enhanced severance benefits contemplated under the terms of Section 6(c)(i) of the Employment Agreement.
(a) making any disclosure of relevant and necessary information or documents in any action, investigation or proceeding relating to this Agreement, or as required by law or legal process, including with respect to possible violations of law, (b) participating, cooperating or testifying in any action, investigation or proceeding with, or providing information to, any governmental agency, legislative body or self-regulatory organization, including, but not limited to, the Department of Justice, the Securities and Exchange Commission, the Congress and any agency Inspector General, (c) accepting any U.S. Securities and Exchange Commission awards, or (d) making other disclosures under the whistleblower provisions of federal law or regulation. In addition, nothing in this Agreement or any other agreement or Company policy prohibits or restricts the Executive from initiating communications with, or responding to any inquiry from, any administrative, governmental, regulatory or supervisory authority regarding any good faith concerns about possible violations of law or regulation. The Executive does not need the prior authorization of the
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Company to make any such reports or disclosures, and the Executive will not be required to notify the Company that such reports or disclosures have been made.
8 (Directors and Officers Insurance); Section 11 (Withholding of Taxes); Section 12 (Deferred Compensation Omnibus Provision); Section 13 (Successors and Assigns); Section 14 (Survival); Section 15 (Choice of Law); Section 16 (Severability); Section 17 (Notice); Section 18 (Amendment and Waiver); and Section 20 (Construction) of the Employment Agreement are fully incorporated herein by reference and shall apply to this Agreement, mutatis mutandis.
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the negotiation and drafting of this Agreement and any related documents, with such payments and/or reimbursements not to exceed $25,000 in the aggregate.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date set forth below.
AVEANNA HEALTHCARE HOLDINGS INC.
By: ___________________/s/ Devin O’Reilly
Name: Devin O'Reilly
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Title:
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Partner
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Dated:
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1/1/2023
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AVEANNA HEALTHCARE LLC
By: ___________________/s/ Devin O’Reilly
Name: Devin O'Reilly
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Title:
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Partner
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Dated:
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1/1/2023
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EXECUTIVE
/s/ Rod Windley
Rodney D. Windley
Dated:12/31/2022
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EXHIBIT A
The chart below is subject to the terms of the Separation and Transition Agreement that this Exhibit A is appended (the “Agreement”).
Grant Date | Equity Award | Outstanding as of 12/31/2022 (#) |
12/31/2017 | Options (Time-Based) | 1,916,648
All vested as of 12/31/2022 |
12/31/2017 | Options (Performance-Based) | 1,206,778
All unvested as of 12/31/2022 |
2/14/2022 | RSUs | 268,509
Subject to the terms of Section 2(b) of the Agreement, one-half of the RSUs will vest on the Separation Date and all other remaining unvested RSUs will be forfeited for no consideration on the Separation Date |
2/14/2022 | PSUs | 268,508
All unvested as of 12/31/2022 |
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EXHIBIT B
[RELEASE AGREEMENT]
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RELEASE AGREEMENT
This Release Agreement (this “Release Agreement”) is entered into by and among Rodney
D. Windley (“Executive”), Aveanna Healthcare LLC (f/k/a BCPE Eagle Buyer LLC) (the “Subsidiary”) and Aveanna Healthcare Holdings Inc., a Delaware corporation and successor to Pediatric Services of America, Inc (“Holdings,” and, together with the Subsidiary, collectively, the “Company”). INTENDING TO BE LEGALLY BOUND, Executive, the Subsidiary and Holdings agree as follows.
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as a result of such different or additional claims or facts. Notwithstanding the foregoing, nothing in this Release Agreement shall preclude Executive from challenging the validity of the release above under the requirements of the ADEA or from filing a charge with, providing truthful information to, or participating in any investigation conducted by the United States Equal Employment Opportunity Commission (“EEOC”) or any other similar state, federal, or local agency, provided that Executive acknowledges that he expressly waives his rights to monetary or other relief should any administrative agency, including but not limited to the EEOC or similar state or local agency, pursue any claim on his behalf, excepting any benefit or remedy to which the Executive is or becomes entitled pursuant to Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and that, unless the release is held to be invalid, all of his claims under the ADEA shall be extinguished. Executive hereby agrees not to bring or cause to be brought any claims waived hereunder, and Executive represents and agrees that Executive has not, directly or indirectly, instituted, prosecuted, filed or processed any litigation, claims or proceedings against the Company or any of the Released Parties, nor has Executive encouraged or assisted anyone to institute, prosecute, file or process any litigation, claims or proceedings against the Company or any of the Released Parties. Executive represents that Executive has not made assignment or transfer of any right or claim covered by this Release Agreement and is not aware of any such right or claim.
(iii) Executive’s rights under any D&O policy maintained by or for the benefit of the Released Parties or their respective employees, officers or directors at any time during or after the course of Executive’s employment with, any of the Released Parties; (iv) any rights that Executive may have to assert an affirmative defense to a claim by the Released Parties; or (v) any rights or obligations under applicable law that cannot be waived or released pursuant to an agreement (such rights under subclauses (i)-(v), “Preserved Rights”). Any claims, rights, and causes of actions not specifically set forth in this Section 3 as Preserved Rights are forever released and waived pursuant to Section 2.
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in the workplace, such as harassment or discrimination or any other conduct Executive has reason to believe is unlawful.
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AVEANNA HEALTHCARE HOLDINGS INC.
By: ___________________/s/ Devin O’Reilly
Name: Devin O'Reilly
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Title: Date:
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Partner 1/1/2023
AVEANNA HEALTHCARE LLC
By: ___________________/s/ Devin O’Reilly
Name: Devin O'Reilly Title: Partner Date: 1/1/2023
RODNEY D. WINDLEY, as Executive
/s/ Rod Windley
Rodney D. Windley
Dated:12/31/2022
Signature Page to the Release Agreement