Back to Form 8-K
Xx.
Xxxxxxx X. Xxxx
Dear
Xx.
Xxxx:
The
purpose of this letter agreement (“Agreement”) is to set forth the terms and
conditions of your employment with WellCare Health Plans, Inc. (the
“Company”).
1.
Term. The
term of your employment with the Company shall commence on January 25, 2008
(the
“Start Date”) and continue until January 25, 2010 (the “Term”).
2.
Position
and
Duties. On the Start Date, you will be appointed, and will
serve during the Term, as the Executive Chairman of the Board of Directors
of
the Company (the “Board”). Your responsibilities as Executive
Chairman will include leadership, and presiding at meetings, of the Board,
advising and working closely with the Chief Executive Officer concerning the
activities of the Company, including regulatory and compliance programs,
financing and other initiatives, and providing leadership concerning the issues
facing the Company. You will not be required to relocate your
principal residence. However, it is anticipated that a reasonable
amount of business-related travel will be required. During the Term,
you will devote such business time and attention as is reasonably required
to
perform your duties to the Company. You will be permitted to engage
in other activities as disclosed to the Board from time to time, so long as
such
activities do not interfere, and are consistent, with your duties and
obligations to the Company.
3.
Base
Salary. During the Term, you will receive base salary at the
annual rate of $500,000, paid in accordance with the regular payroll practices
of the Company. Your base salary will be reviewed by the Board
annually and may be adjusted upward but not downward.
4.
Annual
Bonus. During the Term, you will be eligible to receive annual
bonuses. The amount of any annual bonus will be determined by the
Compensation Committee of the Board, in its sole discretion, taking into account
your individual performance and the performance of the Company.
5.
Initial
Equity
Awards. On the Start Date, the Company will grant to you
200,000 shares of restricted Company common stock. Twenty-five
percent (25%) of such shares of restricted stock will vest six (6) months after
the Start Date and the remaining shares of restricted stock will vest quarterly
thereafter over the remainder of the Term, with the last quarterly installment
vesting on the last day of the Term. At your election, required tax
withholding resulting from the vesting of the restricted stock will be
satisfied
by
withholding shares of Company common stock. The Company will also
grant to you, on the Start Date, options to purchase 300,000 shares of Company
common stock with an exercise price per share equal to the closing price per
share of Company common stock on the date of grant. The options will
vest and become exercisable in eight (8) equal quarterly installments beginning
three (3) months after the Start Date and continuing quarterly thereafter during
the Term, with the last quarterly installment vesting and becoming exercisable
on the last day of the Term. The options will remain exercisable for
ten (10) years from the date of grant, so long as you do not terminate your
employment with the Company prior to the end of the Term without Good Reason
(as
defined in Annex A hereto) and you are not terminated by the Company for
Cause (as defined in Annex A hereto). If you terminate your
employment with the Company prior to the end of the Term without Good Reason,
any unvested restricted stock and unvested options will be forfeited and vested
options will remain exercisable for 90 days after such termination of
employment. In the event you are terminated by the Company for Cause,
all unvested restricted stock will be forfeited and all options, whether vested
or unvested, will be forfeited. The options and restricted stock will
be granted under the Company’s 2004 Equity Incentive Plan (the “Company Stock
Plan”), and the Company shall use its best efforts to cause shares of Company
common stock received on exercise of options to be registered on Form S-8
filed with the Securities and Exchange Commission.
6.
Vesting
of Equity
Awards. All shares of restricted Company common stock and all
options to purchase Company common stock held by you will become immediately
vested in full (and exercisable in full in the case of the options) upon a
Change in Control (as defined in the Company Stock Plan). In the
event your employment is terminated prior to the end of the Term by the Company
not for Cause, by you for Good Reason, due to your Disability (as defined in
Annex A hereto) or due to your death, all shares of restricted Company common
stock and all options to purchase Company common stock held by you will become
immediately vested in full (and exercisable in full in the case of
options).
7.
Severance. In
the event of your “separation from service” with the Company (as defined in
Treas. Reg. § 1.409A-1(h)) prior to the end of the Term by the Company not
for Cause, by you for Good Reason or due to your Disability or death, subject
(other than in the case of death) to your execution and delivery of the Release
attached hereto within 30 days after your separation from service, and not
revoking it during the revocation period, you (or your estate) will receive
an
amount equal to your base salary for the remainder of the Term paid, subject
to
Section 15(iv) below, in a single lump sum 38 days after the date of such
separation from service. If the Company does not also execute
and deliver (and not revoke) the Release, your Release shall be null, void
and
without effect, and you shall still receive the payment described in this
Section.
8.
Benefits. You
will be eligible to participate in the employee benefit plans maintained by
the
Company and its subsidiaries for senior executives on the same basis as other
executive officers, and you will be eligible to receive additional long-term
incentive compensation awards. You will also be entitled to use of
Company provided fractional or chartered aircraft appropriate for senior
executive travel to and from Tampa, Florida and for other required Company
travel.
9.
Business
Expenses. The Company shall promptly reimburse you for all
documented reasonable business and travel expenses incurred by you in the
performance of your duties hereunder.
10.
Certain
Additional
Payments.
(i) In
the event it shall be determined that any payment, benefit or distribution
by
the Company (or any other payor described in Treas. Reg. Sec. 1.280G-1, Q&A
10) to you or for your benefit (a “Payment”) would be subject to the excise tax
(the “Excise Tax”) imposed under Section 4999 of the Internal Revenue Code of
1986, as amended (the “Code”), you shall be entitled to receive an additional
payment (a “Gross-Up Payment”) in an amount such that, after payment by you of
all taxes (and any interest or penalties imposed with respect to such taxes),
including any income and employment taxes and Excise Taxes imposed upon the
Gross-Up Payment, you retain an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon such Payments. Notwithstanding the foregoing
provisions of this Section, if it shall be determined that you are entitled
to a
Gross-Up Payment, but that the portion of the Payments that would be treated
as
“parachute payments” under Section 280G of the Code does not exceed
$50,000, then no Gross-Up Payment shall be made to you and the amounts payable
under Section 7 of this Agreement shall be reduced so that the Payments, in
the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount”
is the greatest amount of payments in the nature of compensation that are
contingent on a Change in Control for purposes of Section 280G of the Code
that
could be paid to you without giving rise to any Excise Tax. If the
reduction of the amounts payable under Section 7 of this Agreement would
not result in a reduction of the Payments to the Safe Harbor Amount, no amounts
payable under this Agreement shall be reduced pursuant hereto and a Gross-Up
Payment will be made to you.
(ii)
All
determinations required to be made under this Section, including whether a
Gross-Up Payment or reduction is required and the amount of any Gross-Up Payment
or reductions of Payments, shall be made by a nationally recognized certified
public accounting firm that shall be designated by the Company and reasonably
acceptable to you (the “Accounting Firm”). The Accounting Firm shall
provide detailed supporting calculations both to the Company and you within
15
business days of the receipt of notice from you that there has been a Payment
or
such earlier time as is requested by the Company or you. All fees and
expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this
Section, shall be paid by the Company to you within 5 business days of the
receipt of the Accounting Firm’s determination and in any event not later than
the last day of the calendar year after the calendar year in which the
applicable Excise Tax is paid. If the Accounting Firm determines that
no Excise Tax is payable by you or that a reduction is required, it shall so
indicate to you in writing.
(iii)
Any
determination by the Accounting Firm shall be binding upon the Company and
you
(absent manifest error), provided that, in
the
event that your tax advisor delivers to the Accounting Firm and the Company
a
written opinion that the actual Excise Tax payable by you is greater than the
Excise Tax amount initially determined by the Accounting Firm by reason of
(A)
manifest error, (B) any Payment the existence or amount of which could not
have
been, or was not, determined or known at the time the Excise Tax was initially
determined or (C) any determination, claim or assertion made by any tax
authority that the actual Excise Tax is greater than the amount initially
determined by the Accounting Firm, then, in any such case, the Accounting Firm
shall recalculate the amount of the Excise Tax and any required (or additional)
Gross-Up Payment. Any such additional calculation or determination
shall be performed consistent with this Section.
(iv)
You
shall notify the Company in writing of any written claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of a
Gross-Up Payment. You shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. You
shall not pay such claim prior to the expiration of the 30-day period following
the date on which you give such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due). If the Company notifies you in writing prior to the expiration
of such period that the Company desires to contest such claim, you shall (i)
give the Company any information reasonably requested by the Company relating
to
such claim, (ii) take such action in connection with contesting such claim
as
the Company shall reasonably request in writing from time to time, including
accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company, (iii) cooperate with the Company in good
faith in order effectively to contest such claim, and (iv) permit the Company
to
participate in any proceedings relating to such claim; provided, however,
that (A) the Company shall bear and pay directly all costs and expenses
(including additional income taxes, interest and penalties) incurred in
connection with such contest, and shall indemnify and hold you harmless, on
an
after-tax basis, for any Excise Tax or income tax (including interest or
penalties) imposed as a result of such representation and payment of costs
and
expenses, and (B) your obligation to cooperate with the Company shall not
require you to take any action, or forego taking any action, that would have
an
adverse effect on your overall tax position.
(v)
Anything in this Agreement to the contrary notwithstanding, in no event shall
any payment by the Company pursuant to this Section be made later than the
end
of your taxable year next following your taxable year in which you remit the
related taxes.
11.
Indemnification
and
Insurance. During and after the Term, the Company shall
indemnify you in your capacity as a director and/or officer of the Company
or
its subsidiaries to the fullest extent permitted by applicable law and the
Company’s charter and by-laws (including an indemnity against any loss or cost
arising out of any claim made by United Health Group Incorporated or one or
more
of its subsidiaries (“United”) that your activities as a director or officer of
the Company or its subsidiaries have resulted in a breach of any obligation
owed
to it or them), including advancement of attorneys’ fees and other fees and
expenses, and in all events provide you with director and officer liability
insurance coverage on a basis that is not less favorable to you than as provided
to any other director or officer of the Company or its
subsidiaries. The parties hereto presently believe that you will be
able to carry out your duties and obligations with and to the Company hereunder
in a manner that complies with your continuing obligations to
United.
12.
Legal
Fees. The Company shall reimburse you for the reasonable legal
fees and expenses incurred by you in connection with your review and negotiation
of this Agreement and the agreements for the equity awards described herein
(including your due diligence regarding the Company) and in connection with
your
ongoing performance of duties hereunder. The Company shall also
reimburse you for all reasonable legal fees and expenses that you may incur
in
connection with any dispute between you and the Company involving this
Agreement, your employment with the Company or the termination thereof, but
only
in the event that you substantially prevail on any material claim in such
dispute. All reimbursements described in this paragraph shall be made
promptly after demand is made by you and your provision to the Company of
reasonably satisfactory evidence of such fees and expenses, but no later than
the last day of the calendar year following the calendar year in which you
incur
such fees and expenses. Your right to reimbursement under this Section in any
calendar year shall not affect the amount eligible for reimbursement in any
other calendar year and shall not be subject to liquidation or
exchange.
13.
Confidentiality.
(i)
You
acknowledge that, by reason of your employment by the Company, you will have
access to Confidential Information (as defined in Annex A hereto) of the
Company and its subsidiaries (the “WellCare Companies”). You
acknowledge that such Confidential Information is a valuable and unique asset
of
the WellCare Companies and covenant that, both during and after the Term, you
will not disclose any Confidential Information to any person (except as your
duties as an employee or director of any of the WellCare Companies may require)
without the prior written authorization of the Board.
(ii)
All
records, designs, business plans, financial statements, customer lists, manuals,
memoranda, lists, research and development plans, Intellectual Property and
other property delivered to or compiled by you by or on behalf of any WellCare
Company or its providers, clients or customers that pertain to the business
of
any WellCare Company shall be and remain the property of such WellCare
Company
and be subject at all times to its discretion and control. Likewise,
all correspondence, reports, records, charts, advertising materials and other
similar data pertaining to the business, activities, research and development,
Intellectual Property or future plans of any WellCare Company that is collected
by you shall be delivered promptly to such WellCare Company without request
by
it upon termination of your employment. For purposes of this Section,
“Intellectual Property” shall mean patents, copyrights, trademarks, trade dress,
trade secrets, other such rights, and any applications.
14.
Unfair
Competition.
You agree that during any period in which you are serving as
Executive Chairman of the Company or receiving severance payments under Section
7 above (which shall not include any period after you have received all payments
thereunder or waived further payments thereunder) you shall not, directly or
indirectly, for yourself or on behalf of or in conjunction with any other Person
(as defined in Annex A hereto), without the prior written consent of the
Board:
(i) engage
as an officer, director, shareholder, owner, partner, joint venturer, or in
any
managerial capacity, whether as an employee, independent contractor, consultant
or advisor (paid or unpaid), or as a sales representative, or otherwise
participate, in each case, in any business that sells, markets, or provides
any
benefits or services within any state in which a WellCare Company is doing
business at the time you cease to be employed by the Company that are in direct
competition with the benefits or services provided by such WellCare Company
in
such state;
(ii) recruit,
hire or solicit any employee or former employee of any WellCare Company or
encourage any employee of any WellCare Company to leave such WellCare Company’s
employ, unless such former employee has not been employed by a WellCare Company
for a period in excess of six months; provided, however,
that the
provisions of this clause (ii) shall not apply to any member of your immediate
family;
(iii) call
upon any Person who is at the time you cease to be employed by the Company,
or
who was at any time during the one year period prior to the date you cease
to be
employed by the Company, a provider, customer or agent of any WellCare Company
for the purpose of soliciting or selling benefits or services that would violate
clause (i) above; or
(iv) request
or advise any provider, customer or agent of any WellCare Company to withdraw,
curtail or cancel its business dealings with such WellCare Company; provided,
however, that nothing in this Section 14 shall be construed to preclude you
from
making any investment in the securities of any business enterprise whether
or
not engaged in competition with any WellCare Company, to the extent that such
securities are actively traded on a national securities exchange or in the
over-the-counter market in the United States or on any foreign securities
exchange, but only if such investment does not exceed two percent (2%) of the
outstanding voting securities of such enterprise.
15.Miscellaneous.
(i) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York (other than its choice of laws rules).
(ii)
This
Agreement constitutes the entire understanding and agreement between the parties
with respect to the subject matter hereof, and supersedes any prior discussions,
negotiations or other written materials in respect of the subject matter
hereof. This Agreement may not be amended, unless such amendment is
in writing and signed by both of the parties hereto.
(iii)
The
Company may withhold from any amounts payable under this Agreement such federal,
state, local or foreign taxes as shall be required to be withheld pursuant
to
any applicable law or regulation.
(iv)
To
the extent that you are a “specified employee” (within the meaning of Treas.
Reg. § 1.409A-1(i)) on the date of your “separation from service” (within
the meaning of Treas. Reg. § 1.409A-1(h)) from the Company, no amount that
constitutes a deferral of compensation that is payable upon such separation
from
service and is subject to the six-month delay rule of Section 409A(a)(2)(B)(i)
of the Code shall be paid to you before the date (the “Delayed Payment Date”)
that is the first day of the seventh month after the date of your separation
from service or, if earlier, the date of your death following such separation
from service. All such amounts that would, but for this Section,
become payable prior to the Delayed Payment Date will be accumulated and paid
on
the Delayed Payment Date. The Company intends that income provided to
you pursuant to this Agreement will not be subject to taxation under Section
409A of the Code. The provisions of this Agreement shall be
interpreted and construed in favor of satisfying any applicable requirements
of
Section 409A of the Code and the regulations promulgated
thereunder. With respect to any reimbursement or in-kind benefit
arrangements of the Company and its subsidiaries provided for herein that
constitute deferred compensation for purposes of Section 409A of the Code,
the following conditions shall be applicable: (i) the amount eligible for
reimbursement, or in-kind benefits provided, under any such arrangement in
one
calendar year may not affect the amount eligible for reimbursement, or in-kind
benefits to be provided, under such arrangement in any other calendar year,
(ii) any reimbursement must be made on or before the last day of the
calendar year following the calendar year in which the expense was incurred,
and
(iii) the right to reimbursement or in-kind benefits is not subject to
liquidation or exchange for another benefit.
(v)
The
Company represents and warrants that it is fully authorized and empowered to
enter into this Agreement and to perform its obligations hereunder.
(vi)
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement and your employment with the
Company
to the extent necessary to preserve the intended rights and obligations of
the
parties.
(vii)
The
invalidity or unenforceability of any provision of this Agreement, or any
provisions of any agreement referred to herein, shall not affect the validity
or
enforceability of any other provision herein or therein.
(viii)
For purposes of this Agreement, the term “including” shall mean “including,
without limitation.”
(ix) This Agreement may be executed in one or more counterparts, including
by
fax or PDF, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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Sincerely,
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| WELLCARE HEALTH PLANS, INC. | |
|
By:
/s/
Xxxx
Xxxxxxxxxx
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| Title: Chairman, Compensation Committee | |
| Acknowledged and Agreed | |
| /s/ Xxxxxxx X. Xxxx | |
| Xxxxxxx X. Xxxx |
Annex
A
The
following definitions shall have the following meanings for purposes of the
Agreement.
“Cause” shall
mean (i) your
willful failure or refusal to perform your lawful and proper duties hereunder
(other than as a result of Disability), (ii) your conviction of or plea of
nolo contendere to any
felony (other than a traffic infraction), or (iii) an act or acts on your
part constituting fraud, theft or embezzlement or that otherwise constitutes
a
felony under the laws of the United States or any state thereof which results
or
was intended to result directly or indirectly in gain or personal enrichment
by
you at the expense of the Company. In the case of any item described
in the previous sentence, you shall be given written notice of the alleged
act
or omission constituting Cause, which notice shall set forth in reasonable
detail the reason or reasons that the Board believes you are to be terminated
for Cause, including any act or omission that is the basis for the decision
to
terminate you. In the case of an act or omission described in clause
(i) of the definition of Cause, (A) if reasonably capable of being cured,
you shall be given 30 days from the date of such notice to effect a cure of
such
alleged act or omission constituting “Cause” which, upon such cure to the
reasonable satisfaction of the Board, shall no longer constitute a basis for
Cause, and (B) you shall be given an opportunity to make a presentation to
the Board (accompanied by counsel or other representative, if you so desire)
at
a meeting of the Board held promptly following such 30-day cure period if the
Board intends to determine that no cure has occurred. At or following
such meeting, the Board shall determine whether or not to terminate you for
“Cause” and shall notify you in writing of its determination and the effective
date of such termination (which date may be no earlier than the date of the
aforementioned Board meeting). For purposes hereof, no act or
omission shall be deemed “willful” if it was done with a good faith belief that
it was in the best interests of the Company.
“Confidential
Information”
means information that is not generally known to the public and that
was or is used, developed
or
obtained by the WellCare Companies in connection with their
business. It shall not include information (a) required to be
disclosed by court or administrative order or by applicable law; (b) lawfully
obtainable from other sources or which is in the public domain through no fault
of yours; or (c) the disclosure of which is consented to in writing by the
Company.
“Disability”
means
any physical
or mental disability or incapacity that can be expected to result in your death
or that has rendered you unable to carry out your duties and obligations to
the
Company for a period of 90 consecutive days or for shorter periods aggregating
to 120 days (whether or not consecutive) during any consecutive
12 months of the Term.
“Good
Reason” shall mean,
without your written consent, (i) the failure of the Company to pay any
compensation or provide any benefits to you when due hereunder, (ii) you
are no longer the Executive Chairman of (A) the Company or (B) in the
event of a merger, consolidation or other business combination involving the
Company, the successor to the Company’s business or assets, or (C) if all
or substantially all of the voting stock of the Company is held by another
public company, such public company, (iii) the assignment to you of any
duties or responsibilities materially inconsistent with your status under clause
(ii) of this sentence, (iv) your failure to be appointed or elected
(or reelected) to the Board, other than due to your decision not to stand for
election or reelection, or your removal from the Board not for Cause and not
due
to your Disability or death, or (v) any material breach by the Company of any
terms of this Agreement; provided, however,
that for any
of the foregoing to constitute
Good
Reason, you must provide written notification of such event or condition
constituting Good Reason within ninety (90) days after you know or have reason
to know of the occurrence of any such event or condition, and the Company shall
have thirty (30) days from the date of receipt of such written notice to effect
a cure of the event or condition constituting Good Reason, and, upon cure
thereof by the Company, such event or condition shall no longer constitute
Good
Reason.
“Person”
shall
have the meaning
set forth in the Securities Exchange Act of 1934, as amended.
EXHIBIT
A
MUTUAL
WAIVER AND RELEASE
AGREEMENT
THIS
MUTUAL WAIVER AND RELEASE AGREEMENT
(this “Release”)
is entered into as of [TO BE DETERMINED AT
TERMINATION OF EMPLOYMENT](the “Effective
Date”),
by Xxxxxxx X. Xxxx (the “Executive”)
and WellCare Health Plans,
Inc., a Delaware corporation (the “Company”), pursuant
to the Employment Agreement by
and between the Company
and the Executive
(the “Employment
Agreement”).
1.Executive’s
Waiver
and Release. Subject
to the last sentence of the
first paragraph of this Section 1, the Executive, on his
own behalf and on
behalf of his heirs, executors,
administrators,
attorneys and assigns, hereby
unconditionally and
irrevocably releases, waives and forever discharges the Company and each of
its
affiliates, parents, successors, predecessors,
and the subsidiaries,
directors, owners, members, shareholders, officers, agents, and employees
of the Company and its
affiliates, parents,
successors, predecessors, and subsidiaries (collectively,
all of the foregoing are
referred to as the “Employer”),
from any and all causes of action,
claims and damages, including attorneys’fees,
whether known or unknown, foreseen
or unforeseen, presently
asserted or otherwise arising through the date of his signing of this
Release,
concerning
his employment or separation
from employment. Subject to the last sentence of the first
paragraph
of this Section 1, this Release
includes, butis not limited
to, any payments, benefits or damages arising under any federal law (including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Employee Retirement Income Security
Act of 1974, the Americans with Disabilities
Act,
Executive Order 11246, the Family and Medical
Leave Act, and the Worker Adjustment
and Retraining Notification Act, each as amended); any claim arising under
any
state or local laws, ordinances or regulations (including,
but
not limited to, any state or local
laws, ordinances or regulations requiring that advance
notice be given of certain
workforce reductions); and any claim arising under any common law principle
or
public
policy, including, but not limited
to, all suits in tort or
contract, such as wrongful termination, defamation, emotional distress, invasion
of privacy or loss of consortium. Notwithstanding any other
provision of this Release to the contrary, this Release does not encompass,
and
Executive does not release, waive or discharge, the obligations of the Company
(a) to make the payments and provide the other benefits contemplated by the
Employment Agreement, or (b) under any restricted stock agreement, option
agreement or other agreement pertaining to Executive’s equity ownership, or (c)
under any indemnification or similar agreement with Executive, including under
the charter and by-laws of the Company.
The
Executive understands that by
signing this Release, he is not waiving any claims or administrative
charges which cannot be
waived by law. He is waiving, however, any right to monetary recovery
or individual relief should any federal, state or local agency (including
the Equal Employment Opportunity
Commission) pursue any claim on his behalf arising out of or related to his employment
with
and/or separation from employment with the Company.
The
Executive further agrees without any
reservation whatsoever, never to xxx the Employer or become a party to a lawsuit
on the basis of any and all claims of any type lawfully and validly
released in this
Release.
0.Xxxxxxx
Waiver and Release. The Company, on its own
behalf and on behalf of each of its affiliates, parents, successors,
predecessors, and subsidiaries hereby unconditionally
and irrevocably releases,
waives and forever
discharges the Executive, his heirs, executors,
administrators, attorneys and
assigns, from any and all causes of action, claims and damages, including
attorneys’fees,
whether known or unknown, foreseen
or unforeseen, presently
assertedor otherwise arising
through the date of
his signing of this Release, concerning his service
or separation from
service. This Release includes, but is not limited to, any payments,
benefits
or damages arising under any
federal law; any claim arising under any state or local
laws, ordinances or
regulations; and any claim arising under any common law principle or public
policy, including, but not limited to, all suits in tort or
contract. The
Company further agrees without
any reservation whatsoever,
never to xxx the Executive
or become a party to a lawsuit on the basis of any and all claims of any type
lawfully and validly released in this Release.
3.
Acknowledgments. The
Executive is signing this Release
knowingly and voluntarily. He acknowledges that:
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(a)
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He
is hereby advised in writing to
consult an attorney before signing
this Release
Agreement;
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(b)
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He
has relied solely on his own
judgment and/or that of his attorney
regarding the consideration
for and the terms of this Release and is signing this Release
Agreement knowingly and
voluntarily of his own free
will;
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(c)
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He
is not entitled to the
severance payment under Section 7 of the Employment Agreement (the
“Severance
Payment”) unless he
agrees to and honors
the terms of this
Release;
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(d)
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He
has
been given at least
twenty-one
(21)
calendar days
to
consider
this Release, or he or she
expressly waives his right to have at least twenty-one
(21) days
to consider this
Release;
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(e)
|
He
may revoke this Release within
seven (7) calendar days after signing it by
submitting a written
notice of revocation to the Employer. He
further
understands that this Release is not effective or enforceable until
after
the seven (7) day period of revocation has expired without revocation,
and
that if he revokes this Release
within the seven (7) day
revocation period, he will not receive
the Severance
Payment;
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|
(f)
|
He
has read and understands the
Release and further understands that, subject to the limitations
contained
herein, it includes a general
release of any
andall known and
unknown, foreseen or unforeseen
claims presently asserted
or otherwise arising through the date of his signing of this Release
that
he may have against the Employer concerning his employment or separation
from employment;
and
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|
|
(g)No
statements made or
conduct by the
Employer has in any way coerced or unduly influenced him or her to
execute
this Release.
|
0.Xx
Admission of Liability. This
Release does not
constitute an admission
of liability or wrongdoing on the
part of the Employer or theExecutive, the Employer
and the
Executive do not admit there has been any wrongdoing whatsoever against the
Executive or the Employer, and the Employer and the Executive expressly deny
that any wrongdoing has occurred.
5.Entire
Agreement. There
are no other agreements of any
nature between
the Employer and the Executive with respect to the matters discussed in this
Release Agreement, except as expressly stated herein, and in signing this
Release, neither the Employer nor the Executive
are relying on anyagreements or representations,
except
those expressly contained in this Release.
6.Execution. This
Release shall be
effective only if executed by both parties.
7.Severability. If
any provision of this
Release is found, held or deemed by a court of competent jurisdiction
to be void,
unlawful or unenforceable under any applicable statute or controlling law,
the
remainder of this Release shall continue in full force and
effect.
8.Governing
Law. This
Release shall be
governed by the laws of the State of New York, excluding
the choice of law
rules thereof.
9.Headings. Section
and subsection headings
contained in this Release are inserted for the convenience of reference
only. Section and subsection headings shall not be deemed to be a
part of this Release for
any purpose, and they shall not in any way define or affect
the meaning, construction or scope
of any of the provisions hereof.
IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the
day
and year first herein above written.
| EXECUTIVE: | |
| _______________________ | |
| Xxxxxxx X. Xxxx | |
|
|
WELLCARE HEALTH PLANS, INC. |
| By: | |
| Title: _____________________________ |
