EX-10.50a Copy of Voluntary Separation Agreement and
Release Between Xxxxxxx X. Xxxxxxx and the
registrant.
VOLUNTARY SEPARATION AGREEMENT AND RELEASE
This memorandum sets forth the terms and conditions of the
Voluntary Separation Agreement and Release ("Agreement") between
Xxxxxxx X. Xxxxxxx, on his own behalf and on behalf of his estate,
heirs, executors, administrators, attorneys, successors and
assigns (hereinafter collectively referred to as the "Employee"),
and The WellCare Management Group, Inc., WellCare of Connecticut,
Inc., WellCare of New York, Inc., its and their parent(s),
branches, agencies, subsidiaries, affiliates, related companies
and divisions and their respective successors, assigns,
representatives, agents, officers, directors, shareholders, and
employees, whether current or former (hereinafter collectively
referred to as "WellCare").
WHEREAS, the Employee and WellCare have agreed that the
Employee's employment with WellCare will be terminated effective
November 17, 1997 (the "Termination Date");
WHEREAS, the Employee will receive his base salary through
November 17, 1997, and shall be paid for all unused accrued
vacation in the amount of $7,010.83, and for all outstanding
business-related expenses in the amount of $2,247.80 (to the
extent not previously reimbursed);
WHEREAS, the Employee shall voluntarily resign as an officer
and a member of the board of directors of WellCare, effective
November 17, 1997. Notwithstanding anything to the contrary in
this Agreement, November 17, 1997 shall be his final date of
employment with WellCare in any capacity.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and undertakings set forth herein, the Employee
and WellCare agree as follows:
1. The employment agreement dated May 29, 1996, by and
between the Employee and WellCare ("Employment Agreement"), and
all rights and obligations of the Employee and WellCare thereunder
shall terminate effective at 5:00 p.m. on the seventh day after
Employee executes this Agreement, provided, however, that Employee
does not revoke this Agreement within seven (7) days after signing
it pursuant to paragraph 18 of this Agreement.
2. As consideration for the Employee's release of any and
all claims against WellCare as set forth in paragraph 3 herein,
WellCare agrees:
(a) to provide the Employee with bi-weekly payments of
$7,307.70, less applicable deductions, for the period from
November 18, 1997 through August 23, 1999, PROVIDED, HOWEVER, that
in the event the Employee secures Alternative Employment, as
defined below, said payments shall cease as of the date the
Alternative Employment commences. For purposes of this Agreement,
"Alternative Employment" shall mean any provision of services to a
health maintenance organization that is in competition with
WellCare in the States of Connecticut or New York. During the
period in which the Employee is receiving payments pursuant to
this paragraph 2(a), the Employee shall (i) be reasonably
available via telephone to answer questions from Xxxxxx X. Xxxx,
Chief Executive Officer of WellCare, or his designee, relating to
those services the Employee performed prior to the termination of
his employment, and (ii) be available, upon reasonable notice and
at times reasonably convenient to the parties, to perform services
for WellCare up to one day per week from November 18, 1997 through
February 17, 1998. In connection with such telephone conferences
and services, WellCare shall reimburse Employee for all reasonable
travel and other expenses incurred or paid by Employee, upon
presentation by Employee of documentation, expense statements,
vouchers and/or such other supporting information as WellCare may
reasonably request. In the event that a "Change in Control," as
defined in Schedule 3.3(c) annexed to the Employment Agreement,
occurs prior to August 23, 1999, at the Employee's option the
remaining bi-weekly payments due under the paragraph 2(a) shall be
accelerated and shall be paid to Employee in a single lump sum
within ten (10) business days of receipt of the Employee's
request; PROVIDED, HOWEVER, WellCare shall be entitled to recover
from the Employee a ratable portion of such lump sum payment if
the Employee commences Alternative Employment prior to August 23,
1999. The Employee will notify WellCare in writing within five
business days of his procuring Alternative Employment;
(b) to pay for the continuation, or if applicable the
conversion, of the Employee's health and dental insurance coverage
in WellCare's group health and dental insurance plans, as in
effect for the Employee and his covered family members immediately
prior to his Termination Date, for the period from November 18,
1997 through August 23, 1999. In the event the Employee relocates
out of the geographic coverage area of such health care insurance
coverage, WellCare shall reimburse the Employee for his payment of
premiums for alternative health care insurance coverage, up to the
amount of WellCare paid premiums for the health care insurance
coverage provided to the Employee immediately prior to his
relocation, for the remainder of the WellCare paid period as set
forth in this paragraph 2(b). Notwithstanding the foregoing,
WellCare's obligation to pay for such continuation and/or
conversion coverage(s) shall cease in the event the Employee
secures full-time employment (i.e., employment other than on a
part-time basis or as a consultant) and is eligible to be covered
under a health benefits package. The Employee will notify
WellCare in writing within five business days of his procuring
other employment, and WellCare shall be entitled to recover from
the Employee any amounts paid for such coverages after the date
the Employee commences other employment;
(c) to pay the premiums, when due, (or if
applicable, reimburse the Employee for the premiums) for $250,000
of term life insurance coverage under the Employee's individual
life insurance policy with Travelers Insurance, as in effect
immediately prior to the Employee's Termination Date, for the
period from November 18, 1997 through August 23, 1999. If
WellCare is billed directly by Travelers for the above mentioned
life insurance policy, WellCare shall timely remit to Travelers an
amount equal to the premiums required to procure an additional
$250,000 of coverage under such policy, so that the Employee shall
have in force $500,000 of such term life insurance coverage
through August 23, 1999; PROVIDED, HOWEVER, that the payments due
to Employee under paragraph 2(a) above shall be reduced by the
amounts paid by WellCare for such additional life insurance
coverage. Notwithstanding the foregoing, WellCare's obligation to
make the payments provided for in this paragraph 2(c) shall cease
in the event the Employee secures other employment. The Employee
will notify WellCare in writing within five business days of his
procuring other employment, and WellCare shall be entitled to
recover from the Employee any amounts paid under this paragraph
2(c) after the date the Employee commences other employment; and
(d) to reimburse the Employee for premiums due and
payable by Employee for his individual Long-Term Disability policy
with Indianapolis Life as in effect immediately prior to the
Employee's Termination Date, for the period from November 18, 1997
through August 23, 1999. Notwithstanding the foregoing,
WellCare's obligation to make the payments provided for in this
paragraph 2(d) shall cease in the event that the Employee secures
other employment. The Employee will notify WellCare in writing
within five business days of his procuring other employment, and
WellCare shall be entitled to recover from the Employee any
amounts paid under this paragraph 2(d) after the date the Employee
commences other employment.
3. In exchange for the payments and benefits set
forth in paragraph 2 above and for other good and valuable
consideration, the Employee hereby releases WellCare from any and
all liability for any claims against WellCare as of the date of
his execution of this Agreement, whether known or unknown to him,
that may arise under express or implied contract, federal, state
or local statute, executive order, law, ordinance, tort or other
obligations arising out of public policy. This release includes
but is not limited to any claims for discrimination on the basis
of race, color, sex, national origin, religion, disability, age,
marital status and veteran status, including but not limited to
any claims arising under Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1866, the Civil Rights Act of 1991,
the Age Discrimination in Employment Act of 1967, the Older
Workers Benefit Protection Act of 1990, the Family and Medical
Leave Act of 1993, the Employee Retirement Income Security Act,
the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act of 1938, the New York State Human Rights Law, and
all claims for wages, monetary or equitable relief, vacation,
other employee fringe benefits, benefit plans, medical plans,
401(k) plans, stock options plans or attorneys' fees. The
foregoing release shall not extend to: (a) any rights or claims
against WellCare that arise after the execution of this Agreement;
(b) any rights or claims in connection with the enforcement of
this Agreement; (c) any rights to indemnification under applicable
law or under the bylaws of WellCare that apply to Employee as a
former officer, director and employee of WellCare; and (d) any
rights with respect to the vested value of his participation in
WellCare's benefit plans (including the 401k plan), which Employee
shall retain in accordance with the terms of said plans. This
Agreement does not constitute any admission by WellCare that it
has violated any such law or legal obligation with respect to any
aspect of the Employee's employment or termination therefrom.
4. The Employee represents, warrants and
acknowledges that WellCare owes him no wages, commissions,
bonuses, sick pay, personal leave pay, holiday pay, severance pay,
vacation pay, tuition reimbursement, stock options, auto
allowance, 401(k) Plan benefits or other compensation or benefits
or payments or forms of remuneration of any kind or nature, other
than that specifically provided for in this Agreement. Reference
is made to Section 3.2 of the Employment Agreement and to the
Option Agreements dated May 29, 1996 (collectively, the "1996
Option Agreement"), and the Option Agreement dated June 27, 1997
(the "1997 Option Agreement" and together with the 1996 Option
Agreements, collectively the "Option Agreements"). Employee and
WellCare hereby acknowledge that: (i) 50% of the options issued
under the 1996 Option Agreement (or options to purchase an
aggregate of 20,000 shares) are currently exercisable; (ii) none
of the options granted under the 1997 Option Agreement are
currently exercisable; (iii) as a result of his termination of
employment, no further options granted under the Option Agreements
or otherwise shall become exercisable; and that (iv) under the
1996 Option Agreement, the Employee has three months from the date
of termination of employment in which to exercise the 20,000
options that are currently exercisable as of the date hereof.
Employee further acknowledges and agrees that WellCare has no
further obligation to issue any options to the Employee under the
Employment Agreement or otherwise.
5. The Employee confirms that he has delivered to
WellCare any and all property and equipment of WellCare, including
his car, beeper, phone, keys, laptop or other computers, and any
other WellCare items he may have had in his possession.
6. The Employee represents and agrees that: (a) he
has not filed or caused to be filed any lawsuits against WellCare
in any court whatsoever; (b) he has not filed or caused to be
filed any charges or complaints against WellCare with any
municipal, state or federal agency charged with the enforcement of
any law; and (c) pursuant to and as a part of the Employee's
complete, total and irrevocable release and discharge of WellCare,
the Employee agrees, to the fullest extent permitted by law, not
to file or cause to be filed a charge, complaint, grievance or
demand for arbitration in any forum, which relates to any matter
that is covered by the provisions of paragraph 3 and that occurred
on or before the date of the Employee's execution of this
Agreement.
7. The Employee, whether as employee, partner,
joint venturer, officer, director, manager, consultant, advisor,
owner (direct or indirect) of more than one percent (1%) of the
stock or equity interest of a corporation or other entity or
otherwise, shall not, for the period in which he is receiving
payments and benefits pursuant to paragraph 2 of this Agreement:
(a) provide any services to a health
maintenance organization that is in competition with WellCare in
the States of Connecticut or New York;
(b) without the prior written consent of
WellCare, recruit or otherwise solicit or induce any employee of
WellCare or any of its subsidiaries (including CT HMO) or
affiliates to terminate his or her employment with, or otherwise
terminate his or her relationship with, WellCare or any of its
subsidiaries (including CT HMO) or affiliates, as the case may be.
(c) If any restriction set forth in this
paragraph 7 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time,
over too great a range of activities, in too broad a geographic
area or for any other reason, it shall be interpreted to extend
only to the maximum extent, whether period of time, range of
activities, geographic area or other terms, as to which it may be
enforceable.
In the event that the Employee elects not to receive
or continue to receive, or is otherwise not receiving payments
pursuant to paragraph 2(a), the provisions of paragraph 7(a) shall
not apply; PROVIDED, HOWEVER, that in the event the Employee
elects to accelerate the payments due to him under paragraph 2(a),
the provisions of paragraph 7(a) shall continue to apply for the
period of time covered by the accelerated lump sum payment.
8. The Employee agrees not to disclose the terms,
contents or execution of this Agreement, the claims that have been
or could have been raised against WellCare as of the date of
execution of this Agreement, and the facts and circumstances
underlying any such claims except in the following circumstances:
a. The Employee may disclose the terms of
this Agreement to his immediate family, so long as such family
member agrees to be bound by the confidential nature of this
Agreement;
b. The Employee may disclose the terms of
this Agreement to (i) his counsel, tax advisors, auditors or
accountants, so long as such persons agree in writing to be bound
by the confidential nature of this Agreement, or (ii) taxing
authorities, if requested by such authorities and so long as they
are advised in writing of the confidential nature of this
Agreement; and
c. Pursuant to the order of a court or
governmental agency of competent jurisdiction, or otherwise as may
be required by law, or for purposes of securing enforcement of the
terms and conditions of this Agreement.
9. In the event the Employee is asked about the
circumstances of his termination by a prospective employer he may
state only that WellCare and the Employee mutually agreed to
terminate his employment so that Employee could seek other
opportunities.
10. The terms, contents or execution of this
Agreement, any claims that have been or could have been raised
against WellCare as of the date of execution of this Agreement,
and the facts and circumstances underlying any such claims shall
not be admissible in any litigation, arbitration or proceeding in
any forum for any purpose other than to secure enforcement of the
terms and conditions of this Agreement, except as required by law.
11. Employee agrees not to issue any communication,
written or otherwise, that disparages, criticizes or otherwise
reflects adversely or encourages any adverse action against
WellCare, except if testifying truthfully under oath pursuant to
any lawful court order or subpoena or otherwise responding to or
providing disclosures required by law.
12. Except as required by law, Employee
specifically agrees that he will not at any time, in any fashion,
form, or manner, either directly or indirectly, divulge, disclose,
or communicate to any person, firm or corporation, in any manner
whatsoever any information of any kind, nature, or description
concerning any matters affecting or relating to the business of
WellCare, including, without limiting the generality of the
foregoing, the names of any of its customers, the prices it
obtains or has obtained, or at which it sells or has sold its
products or services, or any other information of, about, or
concerning the business of WellCare, its manner of operation, its
plans, processes, or other data of any kind, nature, or
description, without regard to whether any or all of the foregoing
matters would be deemed confidential, material, or important, the
parties hereto stipulating that as between them, the same are
important, material, and confidential, and gravely affect the
successful conduct of the business of WellCare and its goodwill,
and that any breach of the terms of this paragraph is a material
breach of this Agreement.
13. Upon service on the Employee, or anyone acting
on his behalf, of any subpoena, order, directive or other legal
process requiring the Employee to engage in conduct encompassed
within paragraphs 6, 8, 10, 11 or 12 of this Agreement, the
Employee or his attorney shall immediately notify Xxxx X. Xxxxxx,
Esq., Xxxxxxx Xxxxxx & Green, P.C., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 and Xxxxxx X. Xxxx, Chief Executive Officer of WellCare
in writing within two business days of such service.
14. Employee agrees that he will assist and
cooperate with WellCare in connection with the defense or
prosecution of any claim that may be made against or by WellCare,
or in connection with any ongoing or future investigation or
dispute or claim of any kind involving WellCare, including any
proceeding before any arbitral, administrative, judicial,
legislative, or other body or agency, including testifying in any
proceeding to the extent such claims, investigations or
proceedings relate to services performed or required to be
performed by Employee, pertinent knowledge possessed by Employee,
or any act or omission by Employee. Employee further agrees to
perform all acts and execute and deliver any documents that may be
reasonably necessary to carry out the provisions of this
paragraph.
15. WellCare shall, to the maximum extent permitted
by corporate laws of the States of New York and Connecticut or any
other applicable jurisdiction (hereinafter referred to as the
"Applicable Corporate Law"), indemnify Employee against
judgements, fines, penalties, amounts paid in settlement and
reasonable expenses actually incurred by him (including reasonable
attorneys' fees) in the event he is made a party to any
proceeding, other than an action by or in the right of WellCare,
by reason of the fact that Employee is or was an employee,
officer, director, or agent of WellCare. WellCare may also
advance to Employee expenses incurred in defending any such
proceedings to the maximum extent permitted by Applicable
Corporate Law, contingent upon satisfaction of all requirements of
said Applicable Corporate Law, including agreement by Employee to
repay such advanced sums if he is later found not entitled to be
indemnified by WellCare pursuant to Applicable Corporate Law. In
accordance with the foregoing, no such indemnification shall be
made unless, INTER ALIA, Employee is successful on the merits in
the defense of any proceeding referenced above, employee acted in
good faith and in a manner he reasonably believed to be in the
best interests of WellCare and, with respect to any criminal
action or proceeding, Employee had not reasonable cause to believe
his conduct was unlawful. It is hereby agreed that such rights of
indemnification shall be in addition to any other rights of
indemnification Employee may have as an officer of WellCare,
pursuant to the Bylaws of WellCare or otherwise.
16. In consideration of the mutual promises,
covenants, benefits and other good and valuable consideration
contained in this Agreement, WellCare hereby releases and forever
discharges and holds the Employee harmless from any and all
claims, charges, complaints, liabilities, losses, obligations,
promises, agreements, damages, actions and expenses, of any nature
whatsoever, against the Employee which WellCare now has knowledge
of as of the date of its execution of this Agreement, including
without limitation, any and all claims, entitlements, and/or
rights which WellCare had, referring, relating or pertaining to
the Employee's employment with WellCare and his termination
therefrom, but excluding (i) any liabilities, claims and demands
which directly or indirectly result from any illegal conduct, act
of fraud, theft or violation of any material regulation or law,
committed by the Employee in connection with the Employee's
employment with WellCare; and (ii) the Employee's obligations
under this Agreement. The Employee represents to WellCare that he
has not engaged in or concealed any conduct as encompassed within
this paragraph 16(i).
17. The failure of the Employee or WellCare to
insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver thereof, or deprive that
party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
18. The Employee acknowledges that he has been
offered twenty-one (21) days from the date he received this
Agreement within which to consider its terms, and that he has been
advised that during such period he should consult an attorney
regarding the terms of this Agreement. The Employee further
acknowledges that his signature below indicates that he is
entering into this Agreement freely, knowingly and voluntarily
with a full understanding of its terms. The terms of this
Agreement shall not become effective or enforceable until seven
(7) days following the date of the Employee's execution of this
Agreement, during which time the Employee may revoke this
Agreement by notifying WellCare in writing, by registered letter
delivered to the attention of the undersigned representative of
WellCare. Any such revocation must be received by 5:00 p.m. on or
before the seventh day.
19. This Agreement constitutes the entire agreement
between the Employee and WellCare, and supersedes and cancels all
prior oral and written agreements, if any, between the Employee
and WellCare. Employee affirms that, in entering into this
Agreement, Employee is not relying upon any oral or written
promise or statement made by anyone at any time on behalf of
WellCare.
20. If any of the provisions, terms or clauses of
this Agreement are declared illegal, unenforceable or ineffective
in a legal forum, those provisions, terms and clauses shall be
deemed severable, such that all other provisions, terms and
clauses of this Agreement shall remain valid and binding upon both
parties; PROVIDED, HOWEVER, if the Employee's release of WellCare
as contained in paragraph 3 of this Agreement is declared by a
court of competent jurisdiction to be illegal, unenforceable or
ineffective and the Employee asserts against WellCare claims that
the parties intended to be released under Paragraph 3, the
Employee shall return to WellCare all monies paid to and the value
of all benefits received by him under this Agreement within ten
(10) business days of any such determination.
21. The Employee acknowledges and agrees that the
restrictions and agreements contained in paragraphs 7 and 12 of
this Agreement, in view of the nature of the Employee's position
and of WellCare's business, are reasonable and necessary in order
to protect WellCare's legitimate interests, and that any violation
thereof would result in irreparable injuries to WellCare that
would not be readily ascertainable or compensable in terms of
money, and therefore the Employee further acknowledges that, in
the event the Employee violates any of these restrictions,
WellCare shall be entitled to obtain from any court of competent
jurisdiction temporary, preliminary and permanent injunctive
relief as well as damages, which rights shall be cumulative and in
addition to any other rights or remedies to which it may be
entitled. The Employee further agrees that in the event he
breaches the terms of this Agreement, WellCare may immediately
cease all payments pursuant to this Agreement, and WellCare shall
be entitled to recover from the Employee all amounts paid to the
Employee pursuant to this Agreement as well as all costs and
reasonable attorneys' fees incurred as a result of WellCare's
attempt to redress such breach or to enforce WellCare's rights and
protect WellCare's legitimate interests; PROVIDED, HOWEVER, in the
event the Employee breaches the terms of paragraph 2(a)(i) of this
Agreement by not being reasonably available via telephone to
answer questions from Xxxxxx X. Xxxx or his designee, Employee
shall be notified by WellCare of his breach and afforded two days
to cure the breach before WellCare may cease all payments pursuant
to this Agreement.
22. The law of the State of New York will control
any questions concerning the validity and interpretation of this
Agreement, without regard to principles of conflicts of law. Any
controversy or claim arising out of or relating to this Agreement,
or breach thereof, shall be settled by arbitration in accordance
with the applicable rules then obtaining of the American
Arbitration Association and judgment on the award rendered may be
entered in any court having jurisdiction thereof. The prevailing
party in any such proceeding shall be entitled to reimbursement of
its costs and expenses (including reasonable attorneys' fees) in
connection with such proceedings.
23. This Agreement has been reached by mutual and
purely voluntary agreement of the parties, and the parties, by
their signatures indicate their full agreement with, and
understanding of, its terms. Employee acknowledges that Employee
has been given a reasonable period of time to consider the
Agreement, and that this Agreement has binding legal effect.
24. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors,
assigns, heirs, executors and legal representatives.
25. This Agreement may not be changed or altered,
except by a writing signed by the Employee and an authorized
officer of WellCare.
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
STATE OF CONNECTICUT )
) ss.: December 9, 1997
COUNTY OF NEW HAVEN )
On this 9th day of December, 1997, before me
personally came Xxxxxxx X. Xxxxxxx, to me known to be the
individual described in the foregoing instrument, who executed the
foregoing instrument in my presence, and who duly acknowledged to
me that he executed the same.
Notary Public
THE WELLCARE MANAGEMENT GROUP, INC.
By:/s/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: President/CEO
STATE OF NEW YORK )
) ss.:
COUNTY OF ULSTER )
On this 10th day of December, 1997, before me
personally came Xxxxxx X. Xxxx, to me known, who being by me duly
sworn, did depose and say that he is President/CEO of The WellCare
Management Group, Inc., the corporation described in and which
executed the foregoing instrument; that he is duly authorized to
execute said instrument on behalf of said corporation, and that he
executed said instrument pursuant to that authority.
/s/Xxxxxxxx X. Xxxx
Notary Public
XXXXXXXX X. XXXX
Notary Public, State of New York
No. 4937485
Qualified in Ulster County
Commission Expires July 25, 1998
WELLCARE OF CONNECTICUT, INC.
By: /s/ Xxxxxx X. Xxxxx
Its Secretary/Treasurer
STATE OF NEW YORK )
) ss.:
COUNTY OF ULSTER )
On this 10th day of December, 1997, before me
personally came Xxxxxx X. Xxxxx, to me known, who being by me
duly sworn, did depose and say that he is Secretary/Treasuer of
WellCare of Connecticut, Inc., the corporation described in and
which executed the foregoing instrument, that he is duly
authorized to execute said instrument on behalf of said
corporation, and that he executed said instrument pursuant to that
authority.
/s/ Xxxxxxxx Xxxxxx
Notary Public, State of New York
Reg. #4917920
Qualified in Ulster County
Commission Expires January 19, 1998
WELLCARE OF NEW YORK, INC.
By:/s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Its President
STATE OF NEW YORK )
) ss.:
COUNTY OF ULSTER )
On this 10th day of December, 1997, before me
personally came Xxxxxx X. Xxxx, to me known, who being by me duly
sworn, did depose and say that he is President of WellCare of New
York, Inc., the corporation described in and which executed the
foregoing instrument, that he is duly authorized to execute said
instrument on behalf of said corporation, and that he executed
said instrument pursuant to that authority.
/s/Xxxxxxxx X. Xxxx
Notary Public
XXXXXXXX X. XXXX
Notary Public, State of New York
No. 4937485
Qualified in Ulster County
Commission Expires July 25, 1998
