SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
Exhibit
10.1
EXECUTION
COPY
SEPARATION
AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This
Separation Agreement and General
Release of All Claims (“Agreement”) is made and entered into by and among WellCare Health Plans, Inc.,
a Delaware
corporation (“WellCare”),
Comprehensive Health Management,
Inc., a Florida corporation (the “Company”) and
Xxxx X. Xxxxx
(hereinafter “Farha”).
WHEREAS
Farha, WellCare and
the Company are parties to an Amended and Restated Employment Agreement dated
June 6, 2005 (the “Employment Agreement”);
WHEREAS
Farha
has served the
Company as its Chief Executive Officer and President;
WHEREAS
Farha has served
WellCare as its Chief Executive Officer, President, and Chairman of its Board
of
Directors, and as a member of its Board of Directors;
WHEREAS
Farha, WellCare and
the Company have agreed that Farha will resign from all positions with WellCare,
the Company, and all of their respective directly and indirectly owned
subsidiaries and affiliates, including all employment, officer and board of
directors and other positions; and
WHEREAS
WellCare, the Company
and Farha desire to resolve any differences or disputes now existing or which
may arise hereafter with respect to Farha’s employment and his resignation
therefrom and as an officer and director.
NOW,
THEREFORE, AND IN
CONSIDERATION of the mutual promises of the parties to this Agreement,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1.
Defined
Terms. Each capitalized term used herein but not otherwise
defined shall have the meaning provided such term in the Employment
Agreement.
2.
Resignation from
Employment. Farha hereby resigns his employment with WellCare,
the Company and their subsidiaries and affiliates, and resigns from all the
offices, directorships and other positions he holds with WellCare, the Company
and all of their respective directly and indirectly owned subsidiaries and
affiliates, including without limitation his positions as Chief Executive
Officer and President of WellCare and the Company, his position as Chairman
of
the Board of WellCare, and his position as a member of the Board of Directors
of
WellCare, effective as of January 25, 2008; provided, however, Farha
shall continue as a non-executive employee of the Company to facilitate an
orderly transition, and shall be available to the Company upon request through
close of business on March 31, 2008 (the “Resignation Date”). After
the Resignation Date, Farha shall not be entitled to the receipt of any further
payments or benefits from WellCare or the Company other than those related
to
the Indemnification and Advancement Rights (as defined below) and as expressly
provided for in this Agreement. WellCare and the Company hereby
accept such resignation. The parties agree that this Agreement
constitutes written notice to WellCare of Farha’s resignation from the Board of
Directors of WellCare, pursuant to Article III, Section 11 of WellCare’s Amended
and Restated Bylaws. The parties further agree that Farha’s
resignation on the Resignation Date shall be deemed for all purposes of the
Employment Agreement to be a “Voluntary Resignation by Executive” (as defined in
Section 4(d) of the Employment Agreement) except as set forth
herein.
3.
Payments Upon and
Following Resignation.
(a)
In accordance with Sections 5(d) and (e) of the Employment Agreement, Farha
shall receive, on the next regularly scheduled pay day after the Resignation
Date, the unpaid portion of his base salary through the Resignation Date, as
well as payment for any accrued but unused vacation days as of the Resignation
Date, in accordance with WellCare’s and the Company’s applicable policies and
procedures.
(b)
Farha’s benefits shall terminate in accordance with the terms of WellCare’s and
the Company’s respective benefits plans and its standard policies and
procedures, except that: (i) Farha may elect to continue the health
insurance coverage that he had maintained as an employee pursuant to the
Consolidated Omnibus Budget Reconciliation Act as amended (“COBRA”), and (ii)
subject to his insurability, the Company shall assign to Farha the Executive
Policies (as that term is defined in the Employment Agreement).
(c)
WellCare or the Company shall reimburse Farha for appropriate and reasonable
expenses incurred on or before the Resignation Date, if any, in accordance
with
the applicable policies and procedures.
(d)
Farha shall make himself reasonably available after the Resignation Date through
June 30, 2008 to assist the Company and/or WellCare with business
transition issues, as may be requested by the Company. The Company
will compensate Farha for any such services at a rate of $500 per hour plus
appropriate and reasonable expenses.
4.
Stock Options and
Stock.
(a)
In accordance with Sections 5(d) and (e) of the Employment Agreement, subject
to
Section 4(c) below, and subject to any restrictions otherwise provided
hereinafter or by agreement, plan terms or law, Farha (i) owns the WellCare
restricted stock and the WellCare stock options that have vested prior to
January 2008, and (ii) as to options and restricted stock vesting after such
date, shall, upon exercise in accordance with the applicable option agreement
as
to options, be deemed the owner of vested shares, as set forth in Exhibit A hereto,
to
the extent permitted and as provided in the agreement or plan governing such
options and shares with respect to a voluntary resignation without good
reason. Any such vesting and/or exercise shall be completed in
accordance with and subject to the terms and conditions of the undated
Non-Qualified Stock Option Agreement under the 2004 Equity Incentive Plan
providing for a grant of an option as of March 13, 2007; the undated
Non-Qualified Stock Option Agreement under the 2004 Equity Incentive Plan
providing for a grant of an option as of March 13, 2006, the June 6,
2005 Non-Qualified Stock Option Agreement under the 2004 Equity Incentive Plan,
the March 15, 2005 Restricted Stock Agreement, the February 6, 2004 Time
Vesting Option Agreement Evidencing a Grant of an Option under 2002 Employee
Option Plan, the applicable plan documents, and applicable law, consistent
with
the terms of this Agreement. Otherwise, any unvested stock options
granted to Farha, as well as any unvested restricted stock and performance
shares granted to him, subject to Section 4(e) below, shall terminate as of
the
Resignation Date.
(b)
For purposes of illustrating and implementing Section 4(a)(ii) and none other,
set forth as Exhibit
A hereto is a tabular summary of the vested options which Farha shall
be
entitled to exercise following the Resignation Date, subject to the provisions
of Section 4(a) of this Agreement.
(c)
Notwithstanding the foregoing, Farha, WellCare and the Company agree that (i)
Farha must exercise the options referenced in Section 4(b) no later than June
28, 2008 and (ii) any sales by Farha of shares of WellCare common stock acquired
upon exercise of these options will be effected (A) only in compliance with
the
federal securities laws, (B) in accordance with the provisions of Rule 144
under
the Securities Act of 1933, as amended and, (C) at such time as the provisions
of Rule 144 shall cease to apply to such sales, will be made only if WellCare
is
current in its periodic report filings with the Securities and Exchange
Commission. WellCare believes that WellCare's existing Form S-8 registration
statements are and will remain effective through April 29, 2008, notwithstanding
WellCare's late filing of its Form 10-Q for the quarter ended September 30,
2007
or any late filing of its Form 10-K for the year ended December 31, 2007, and,
therefore, WellCare agrees not to refuse to honor a request made by Farha on
or
before April 29, 2008 to exercise the options on the basis that the Form S-8
registration statements were no longer effective as a result of such late
filings. In the event the options are exercised subsequent to April 29, 2008,
the parties to this Agreement hereby acknowledge that WellCare may not have
an
effective registration statement covering the shares; and, in such event
WellCare shall in no event be obligated to issue shares other than in compliance
with applicable securities law, and such options shall be exercisable and the
subject shares deliverable only upon the WellCare’s receipt from counsel to
Farha of an opinion of counsel, reasonably acceptable to WellCare in form and
substance, that for lawful issuance of such shares, such registration is not
required under the Securities Act of 1933 and applicable state securities laws
under the circumstances.
(d)
In that event Farha provides notice to WellCare of his intent to sell or
otherwise lawfully dispose of any vested shares of restricted stock, including
but not limited to a sale of such restricted stock pursuant to Rule 144 of
the
Securities Act of 1933, WellCare hereby covenants and agrees that it will take
reasonable steps to promptly facilitate the sale of such restricted stock in
good faith and at WellCare’s expense. Such facilitation shall
include, but is not limited to, clearing any such sale with WellCare’s transfer
agent, providing all appropriate legal opinions, and otherwise enabling the
removal of any restrictive legends from the share certificates.
(e)
Notwithstanding Paragraph 4(a) above, Farha claims that a total of 32,500,
65,000, or 130,000 shares (“Performance Shares”) subject to the June 6,
2005 Performance Share Award Agreement (the “Performance Share Agreement”) may
have been earned subject to final reporting of WellCare’s audited financial
results for the fiscal 2006 through fiscal 2007 period. Farha agrees
that such claim is relinquished, and his rights to receive any such Performance
Shares shall be deemed extinguished, unless all of the following conditions
shall have been satisfied prior to June 6, 2010:
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(i)
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WellCare’s
having achieved (A) the maximum cumulative adjusted earnings per
share
(“cumulative adjusted EPS”) provided by the Performance Share Agreement
for vesting of such 130,000 shares, (B)the target cumulative adjusted
EPS
for the vesting of 65,000 shares, or (C) the threshold cumulative
adjusted
EPS for the vesting of 32,500 shares shall be confirmed by the final
reporting of WellCare’s audited financial results for the fiscal 2005
through fiscal 2007 period;
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(ii)
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There
shall have been no loss contingencies identified for subsequent periods
which, had they been identified and accrued in the fiscal 2005 through
the
fiscal 2007 period, would have resulted in the fiscal 2005 through
fiscal
2007 cumulative adjusted EPS not meeting the relevant cumulative
adjusted
EPS amounts as referenced in Section 4(e)(i) above;
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(iii)
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Farha
shall not be subject to any legal proceeding brought or threatened,
or
that could but has yet to be brought, by a governmental entity in
connection with the ongoing investigations, meaning and including,
without
limitation, that all of the following must have occurred: (a) that
Farha
shall not have become a party to, or have consented to the entry
or
execution of, an order or negotiated resolution with any court or
government agency (regardless of whether criminal or civil) relating
to or
arising out of the matters under investigation in which it is found
or
determined (regardless of whether Farha so admits) that Farha violated,
caused others to violate, or acted so as to aid and abet or cause
or
contribute to the violation by others of applicable laws, rules,
or
regulations; and (b) that Farha shall have been advised (and is able
to so
confirm to the Company's reasonable satisfaction) by the U.S. Department
of Justice, the U.S. Securities and Exchange Commission, and other
governmental entities involved or that may become involved in the
ongoing
investigations, that such governmental bodies have no further questions
or
requirements of information from him under their processes and have
determined neither to prosecute nor to otherwise proceed against
Farha
(regardless of whether criminal or civil) in connection with the
ongoing
investigations; and (c) that it shall not have been found or determined
that Farha caused others to violate, or acted so as to aid and abet
or
cause or contribute to the violation by others of, applicable laws,
rules
or regulations, with respect to WellCare’s, the Company’s, or any of their
subsidiaries’ or affiliates’ affairs (regardless of whether criminal or
civil); and
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(iv)
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WellCare,
the Company or any of their subsidiaries or affiliates shall not
have been
required, as a basis for resolving their status under the ongoing
law
enforcement investigations and any proceedings resulting therefrom,
to
have entered into or become subject to any criminal or civil order
of any
court or agency relating to the matters under investigation, or any
agreement with any governmental agency, by which there are found
to have
been violations of laws, rules or regulations by the Company, WellCare,
or
their subsidiaries or affiliates occurring within the 2005 through
2007
(or prior) period.
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In
the
event it shall be agreed or determined that the conditions to Farha’s claim to
the Performance Shares have been satisfied, he shall pay WellCare in cash or
forfeiture of shares for all applicable withholding and shall hold the Company
and WellCare harmless for any tax effects or consequences. WellCare
and the Company agree that in determining whether Farha’s claim to the
Performance Shares for the fiscal 2005 through fiscal 2007 Performance Cycle
has
been satisfied, Farha shall not be deemed to have forfeited any rights with
respect to such claims due to the effective date of his
resignation.
5.
General
Release.
(a)
In consideration for the payments and obligations undertaken by WellCare and
the
Company herein, Farha, his agents, heirs, executors, administrators, successors,
and assigns do fully release and discharge WellCare, the Company and their
respective parent, subsidiary and affiliate corporations, and related companies,
as well as all their respective predecessors, successors, assigns, directors,
officers, partners, agents, employees, former employees, executors, attorneys,
and administrators (hereinafter “Company, et al.”), from all
grievances, suits, causes of action, and/or claims of any nature whatsoever,
whether known, unknown, or unforeseen, which he has or may have against Company,
et al., for any reason
whatsoever, whether in law or in equity, under Federal, state or other law,
whether the same be upon statutory, tort, contract or other basis, including,
but not limited to, all charges, complaints, and claims arising out of any
event, transaction, or matter that occurred before the date of this Agreement,
and specifically including without limitation any and all claims arising out
of
the Employment Agreement, the undated Non-Qualified Stock Option Agreement
under
the 2004 Equity Incentive Plan providing for a grant of an option as of March
13, 2007, the undated Non-Qualified Stock Option Agreement under the 2004 Equity
Incentive Plan providing for a grant of an option as of March 13, 2006, the
June 6, 2005 Non-Qualified Stock Option Agreement under the 2004 Equity
Incentive Plan, the February 6, 2004 Time Vesting Option Agreement
Evidencing a Grant of an Option under 2002 Employee Option Plan, the June 6,
2005 Performance Share Award Agreement, the June 6, 2005 Restricted Stock
Agreement under the 2004 Equity Incentive Plan, the March 15, 2005 Restricted
Stock Agreement under the 2004 Equity Incentive Plan, or any other agreement
or
amendment thereto entered into by WellCare and/or the Company, and Farha (each
of the foregoing, respectively, the “Equity Agreements”). Farha
covenants that neither he, nor any person, organization, or other entity on
his
behalf, will xxx the Company, et al., or initiate any
type
of action, judicial, administrative, or otherwise against the Company, et al., with respect to
any
event, transaction, or matter that occurred before the date of this Agreement,
or with respect to any continuing effects of such events, transactions, or
matters. It is expressly agreed and understood that this release is a
GENERAL
RELEASE.
(b)
This release and discharge specifically includes, but is not limited to, all
claims for breach of contract, employment discrimination (including but not
limited to, discrimination on the basis of race, sex, religion, national origin,
age, marital status, disability or any other protected status), including but
not limited to claims under Title VII of the Civil Rights Act, as amended,
the
Americans with Disabilities Act, or any similar federal, state or local law,
including but not limited to the Florida Civil Rights Act, Chapter 760, Florida
Statutes, claims under the Employee Retirement Income Security Act of 1974,
or
claims arising out of any alleged restrictions on the right of Company, et al., to terminate
employees, and/or claims concerning job classification, recruitment, hiring,
sick pay, holiday pay, vacation pay, severance pay, wages or benefits due,
overtime pay, stock and stock options, promotions, transfers, employment status,
libel, slander, defamation, promissory estoppel, intentional or negligent
misrepresentation and/or infliction of emotional distress, together with any
and
all tort, contract, or other claims which might have been asserted by
Farha
or
on his behalf in any suit, grievance, charge of discrimination, or claim against
the Company, et
al. Farha hereby expressly releases and forever discharges the
Company, et al. from
any and all claims, demands, and/or causes of action that may exist under all
written agreements between Farha and the Company, et al. Farha
hereby forever releases the Company, et al., from any liability
or obligation to reinstate or reemploy him in any capacity and waives any right
to be hired or placed in any position or to any future employment of any nature
with the Company, et
al.
(c)
Notwithstanding the foregoing or any other provision of this Agreement, Farha
is
not releasing: (1) any claims for unemployment insurance compensation or
workers compensation benefits or other rights that may not be released as a
matter of law; (2) any non-waivable right to file a charge with the United
States Equal Employment Opportunity Commission (“EEOC”); (3) any rights provided
under this Agreement or the Equity Agreements to the extent expressly provided
for herein; (4) Farha’s Indemnification and Advancement Rights as set forth in
Section 5(d) and 16(b) of this Agreement; or (5) any right to assert any
defenses, including affirmative defenses, against any allegations,
investigations, grievances, suits, causes of action, and/or claims of any nature
whatsoever that have been, or in the future may be, brought against Farha
arising out of any event, transaction, or matter that occurred before the date
of this Agreement. Provided further, however, that if EEOC were to
pursue any claims on Farha’s behalf against the Company, et al., Farha waives any
right to recover monetary damages as a result thereof.
(d)
The release set forth in the preceding Section 5(a)-(b) does not include or
in
any way limit Farha’s rights to indemnification and advancement of legal
expenses, whether under Farha’s Indemnification Agreement dated August 7,
2003, attached hereto as Exhibit B (“Indemnification Agreement”), the Employment
Agreement, WellCare’s Amended and Restated Certificate of Incorporation (the
“Certificate”), Amended and Restated Bylaws, the articles or certificate of
incorporation and by-laws of any of WellCare’s wholly-owned direct or indirect
subsidiaries, including the Company, Delaware law, Florida law, the law of
the
state of incorporation of any of WellCare’s wholly-owned direct or indirect
subsidiaries, or any other law or source (collectively, “Indemnification and
Advancement Rights”).
(e)
Farha represents that he has not filed or joined in any claims, charges or
complaints against the Company, et al., and that he is
aware
of no person entitled to make a claim or file a charge of any kind relating
to
or arising out of his employment with the Company, et al.
6.
Survival of
Obligations. Farha understands and agrees that he shall
continue to be subject to any obligations under the Employment Agreement that
survive his resignation under Section 5(d) thereof, including but not limited
to
Sections 6 through 8 thereof. Farha further understands and agrees
that the provisions of Section 9 of the Employment Agreement (relating to
remedies for a breach of Sections 6 through 8 of the Employment Agreement)
shall
survive his resignation. WellCare and the Company understand that the
provisions of the first paragraph of Section 15 of the Employment Agreement
shall survive his resignation.
7. Participation in Employee Benefit Plans. In
accordance with Section 5(f) of the Employment Agreement, after the Resignation
Date, Farha shall not be entitled to participate in or accrue benefits under
any
plan of the Company or WellCare relating to stock options, stock purchases,
restricted stock, performance shares, pension, thrift, profit sharing, employee
stock ownership, group life insurance, medical coverage, disability insurance,
education, housing allowance, car allowance, or other retirement or employee
benefits, except as expressly provided in this Agreement and except that Farha
may elect to continue his health insurance coverage pursuant to COBRA and,
subject to his insurability, the Company shall assign to Farha the Executive
Policies (as that term is defined in the Employment Agreement), and as set
forth
in Section 3(b) above.
8.
Return of Company
Property and Proprietary Information. Farha represents that to
the best of his knowledge he has returned to the Company all documents and
other
property of the Company and WellCare, including but not limited to all files,
diskettes and other electronic or storage media, that contain the Company’s or
WellCare’s confidential and/or proprietary information, except that the parties
agree that Farha may retain his Company-issued computer equipment and
blackberry. WellCare and the Company understand that Farha has
duplicate copies of documents from WellCare and the Company for purposes of
defending claims that have been or may be filed against Farha.
9.
Non-Disparagement/Joint
Statements.
(a) Farha
expressly agrees that he will not
make any knowingly false comments about the Company, WellCare, or any of its
or
their affiliates, about its or their business affairs or financial condition,
or
about its or their employees, directors or officers.
(b)
The Company will provide Farha an advance copy of the portion of its public
announcement relating to Farha’s resignation. Farha shall be provided
an opportunity to comment on such language but the final determination
concerning such language shall be made by the Company.
10.
Non-Disclosure
(a)
Except as provided by Section 11 below, or as required by applicable law,
neither Farha nor WellCare and/or the Company shall disseminate or disclose
to
any person or entity (other than their attorneys and accountants, all of whom
in
turn shall be subject to this restriction) the terms of this Agreement or the
discussions leading to this Agreement; provided, however, that neither WellCare
nor the Company or their agents shall be prohibited from disclosing such
information for purposes of financing transactions or other good faith business
purposes. The parties hereby acknowledge that this Agreement will be
filed with the Securities and Exchange Commission.
(b)
Except as provided in Section 11 below, Farha further agrees that he will
not provide any form of assistance, support, or information, including but
not
limited to documents, testimony, or written or oral statements, to any person
that is asserting, investigating or intending to assert any claims against
the
Company or WellCare.
(c) Neither
Farha nor WellCare and/or the Company shall be prohibited by any provision
hereof from talking with or assisting federal or state law enforcement or
regulatory agencies, or complying with applicable state or federal laws or
regulations.
11.
Cooperation with
Government Investigations and Responses to Subpoenas. No
provision of this Agreement, including Sections 9 and 10 hereof, shall in
any way limit Farha’s ability to communicate or cooperate (consistent with
WellCare’s and/or the Company’s rights to preserve its legal privilege) with any
federal, state or local government investigative agency or department or in
connection with any federal, state or local government investigation or be
construed as prohibiting the provision of non-privileged information, documents
(including but not limited to this Agreement) and/or testimony by Farha or
the
Company in response to a subpoena issued by a court of competent jurisdiction,
or as may otherwise be required by law or which Farha or the Company may be
requested to provide to any federal, state, or local governmental investigative
agency or department or in connection with any federal, state, or local
investigation. However, in the event of receipt of any
non-governmental subpoena Farha agrees to notify the Company and WellCare
promptly before complying with such a subpoena so that they may protect their
interests, including moving to quash the subpoena, as long as provision of
such
notice does not violate any applicable law, rule, or court order. If
the Company and/or WellCare seek to prevent disclosure in accordance with the
applicable legal procedures, and provide Farha with notice before the deadline
for Farha’s compliance with the subpoena, Farha shall not make any such
disclosures until either such objections are withdrawn or the objections are
finally adjudicated by the appropriate tribunal to be invalid.
12.
No Other
Consideration. Farha affirms that the terms stated herein are
the only consideration for signing this Agreement and that no other
representations, promises, or agreements of any kind have been made by any
person or entity to cause him to sign this Agreement.
13.
Cooperation and
Legal
Proceedings. Farha agrees to reasonably cooperate with the
Company and WellCare in connection with ongoing WellCare matters, including
civil litigation in which the government is not a party, it being expressly
understood and agreed that nothing in this Section or this Agreement (or any
other agreements with the Company or WellCare) shall require Farha to take
any
action (including without limitation consenting to an interview in any
investigation or litigation) that Farha reasonably and in good faith believes
would compromise his rights or privileges under the United States Constitution
or any state constitution. The Company shall reimburse Farha for
reasonable expenses, if any, he incurs while complying with this
obligation.
14.
No
Admission. It is understood and agreed by all parties that
this Agreement and the terms of this Agreement do not constitute an admission
of
liability or wrongdoing on the part of the Company or WellCare or Farha and
that
by entering into this Agreement and agreeing to the terms of this Agreement
neither the Company nor WellCare nor Farha admits that there has been any
wrongdoing whatsoever against any person or entity. It is understood
and agreed by all parties that this Agreement is purely an offer of
compromise.
15.
Modification. This
Agreement may not be released, discharged, abandoned, supplemented, changed,
or
modified in any manner, orally or otherwise, except by an instrument in writing
signed and duly executed by each of the parties hereto.
16. Entire
Agreement/Indemnification.
(a)
This Agreement contains and constitutes the entire understanding and agreement
between the parties on its subject matter, and, except as otherwise provided
herein, it supersedes and cancels all previous negotiations, agreements,
commitments, and writings in connection herewith, including but not limited
to
the Employment Agreement; provided, however, that nothing herein shall
supersede, cancel, terminate, or otherwise apply to the Indemnification
Agreement and those paragraphs of the Employment Agreement set forth in Section
6 of this Agreement. If a conflict or inconsistency is found between the terms
of this Agreement and any other agreement, the terms of this Agreement shall
prevail.
(b)
WellCare and the Company hereby reaffirm their obligations to Farha under the
Indemnification Agreement and acknowledge their obligation to comply fully
with
the Indemnification Agreement and all Indemnification and Advancement Rights.
Farha represents to the Company and WellCare, and the Company and WellCare
hereby acknowledge to Farha that, so far as known to WellCare’s Board, Farha has
complied fully with his obligations under the Indemnification
Agreement.
17.
Waiver. Failure
to insist upon strict compliance with any term, covenant, or condition of this
Agreement shall not be deemed a waiver of such term, covenant, or condition,
nor
shall any waiver or relinquishment of any right or power under this Agreement
at
any time or times be deemed a waiver or relinquishment of such right or power
at
any other time or times.
18.
Enforcement. Farha
agrees that his obligations in this Agreement are reasonable and necessary
to
protect the business of the Company and WellCare and that any violation of
his
obligations in this Agreement would cause the Company and WellCare substantial
irreparable injury. Accordingly, Farha agrees that a remedy at law
for any breach of the obligations in this Agreement would be inadequate and
that
the Company and/or WellCare, in addition to any other remedies available, shall
be entitled to obtain temporary, preliminary and/or permanent injunctive relief
to secure specific performance of such obligations and to prevent a breach
or
threatened breach of this Agreement without the necessity of proving actual
damage and without the necessity of posting bond or security, which he expressly
waives. Farha agrees to provide the Company and/or WellCare a full
accounting of all proceeds and profits received by him as a result of or in
connection with a breach of this Agreement. Unless prohibited by law,
the Company and/or WellCare shall have the right to retain any amounts otherwise
payable by the Company and/or WellCare to him to satisfy any of his obligations
as a result of any breach of this Agreement. The Company and/or
WellCare shall also have the right to immediately terminate payments, if any,
due to Farha under this Agreement in the event of a breach of any of his
obligations arising out of this Agreement. Farha further agrees to
indemnify and hold harmless the Company and WellCare from and against any
damages incurred by either or both as assessed by a court of competent
jurisdiction as a result of any breach of this Agreement by him.
19.
Severability. Invalidity
or unenforceability of any provision of this Agreement shall in no way affect
the validity of enforceability of any other provision.
20. Assignability. WellCare
and/or the Company may, without the consent of Farha, assign its rights and
obligations under this Agreement to any successor entity, provided, however,
that in the event of Farha’s death, his rights under this Agreement shall inure
to the benefit of his estate. Notwithstanding anything in this
Section or this Agreement, the obligations of WellCare and/or the Company with
respect to Indemnification and Advancement Rights shall be binding on any
successors or assigns of WellCare or the Company.
21.
Choice of Law and
Forum Selection. The terms of this Agreement shall be governed
by the laws of the State of Florida. Farha, WellCare and the Company
agree and submit to the exclusive jurisdiction of any state or federal court
in
Tampa, Florida where there is proper venue, in any action or proceeding arising
out of or relating to this Agreement or the transactions contemplated herein,
and agrees that all claims in respect of any such action or proceeding may
be
heard or determined in such Court except for all claims or proceedings in which
a court of another jurisdiction is vested with exclusive jurisdiction by
law.
22.
Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original, but all of which together will constitute one and
the
same Agreement.
23.
Acknowledgements. Farha
hereby acknowledges that he has carefully read and fully understands the
provisions of this Agreement, including the General Release, that he has had
the
opportunity to fully discuss it with counsel, and that he knows the contents
of
the Agreement. Farha further acknowledges that he is signing this
Agreement voluntarily and without coercion.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
set
forth below.
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WELLCARE HEALTH PLANS, INC. |
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By: /s/ Xxxx Xxxxxxxxxx |
| Name: Xxxx Xxxxxxxxxx | |
| Title: Chairman, Compensation Committee | |
| Date: 1/25/08 | |
| COMPREHENSIVE HEALTH MANAGEMENT, INC. | |
| By: /s/ Xxxx Xxxxxxxxxx | |
| Name: Xxxx Xxxxxxxxxx | |
| Title: Duly Authorized | |
| Date: 1/25/08 | |
.
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XXXX XXXXX |
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/s/ Xxxx Xxxxx |
| Date: 1/25/08 |
Exhibit
A to
Xxxx
Xxxxx Separation Agreement and General Release of All Claims
Between
January 22, 2008 and March 31, 2008, Farha will become vested in the following
additional options and restricted shares:
|
Agreement
|
Number
of Options and Restricted Shares Vesting Between 1/22/08 and
3/31/08
|
Exercise
Price
|
||||||
|
March
13, 2007 Stock Option Agreement
|
50,000 | $ | 85.53 | |||||
|
Xxxxx
00, 0000 Xxxxx Option Agreement
|
20,000 | $ | 41.74 | |||||
|
March
15, 2005 Restricted Stock Agreement
|
4,000 | N/A | ||||||
|
February
6, 2004 Stock Option Agreement
|
3,389 | $ | 8.33 | |||||
As
of
March 31, 2008, and subject to paragraph 4(c) of the Farha Separation Agreement
and General Release of All Claims, Farha’s cumulative vested options and vested
shares under these listed Agreements will be as follows:
|
Agreement
|
Number
of Vested Options and Restricted Shares
|
Exercise
Price
|
||||||
|
March
13, 2007 Stock Option Agreement
|
50,000 | $ | 85.53 | |||||
|
Xxxxx
00, 0000 Xxxxx Option Agreement
|
40,000 | $ | 41.74 | |||||
|
June
6, 2005 Stock Option Agreement
|
110,000 | $ | 34.95 | |||||
|
March
15, 2005, Restricted Stock Agreement
|
16,000 |
N/A
|
||||||
| June 6, 2005 Restricted Stock Agreement | 55,000 |
N/A
|
||||||
|
February
6, 2004 Stock Option Agreement
|
81,315
(100% of the shares under that Agreement providing originally for
100,000
“units”)
|
$ | 8.33 | |||||
