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EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") IS MADE AND ENTERED INTO AS OF THE 4TH
DAY OF SEPTEMBER, 2001 BY AND BETWEEN CONTINUCARE CORPORATION, A FLORIDA
CORPORATION (THE "COMPANY") AND XXXXX XXXXXXX XXXXXX, ESQ. (THE "EMPLOYEE").
RECITALS
A. Whereas, the Board of Directors of the Company (the "Board") believes
that the Employee can contribute to the growth and success of the
Company, and desires to assure the Company of the Employee's employment
and to compensate her therefore.
B. Whereas, the Board has determined that this Agreement will reinforce
and encourage the Employee's attention and dedication to the Company.
C. Whereas, the Employee is willing to make her services available to the
Company on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the parties agree as follows:
1. EMPLOYMENT
1.1 GENERAL. The Company hereby agrees to employ the Employee, and
the Employee hereby agrees to be employed by the Company on
the terms and conditions set forth herein.
1.2 DUTIES OF EMPLOYEE. During the terms of this Agreement, the
Employee shall serve as EXECUTIVE VICE PRESIDENT and GENERAL
COUNSEL and shall diligently perform all services as may be
assigned to her by the C.E.O., and shall exercise such power
and authority as may from time to time be delegated to her by
the C.E.O. The Employee shall devote substantially all of her
business time and attention to the business and affairs of the
Company, render such services to the best of her ability, and
use her best efforts to promote the interests of the Company.
2. TERM.
2.1 Except as otherwise provided in Section 5 hereof, the term of
this Agreement shall be one (1) year commencing on September
4, 2001 (the "Effective Date") and shall automatically renew
for additional one year periods unless otherwise terminated by
written notice by either party no less than 60 days
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prior to the termination date (the "Anniversary Termination")
or in accordance with this Agreement.
3. COMPENSATION
3.1 BASE SALARY. The Employee shall receive a base salary at the
annual rate of One Hundred Sixty Thousand Dollars ($160,000)
(the "Base Salary") during the Term of this Agreement, with
such Base Salary payable in installments consistent with the
Company's normal payroll schedule, subject to applicable
withholding and other taxes. The Base Salary may be subject to
increase from time to time as determined by the Company's CEO
and the Compensation Committee of the Board of Directors (the
"Compensation Committee").
3.2 BONUS. The Employee shall also be eligible to receive a
discretionary bonus ("Bonus") in an amount determined by the
C.E.O. and Compensation Committee of the Board of Directors of
the Company up to a maximum of twenty percent (20%) of the
Employee's Base Salary, which amount shall be determined
annually on the anniversary date of this Agreement.
3.3 STOCK OPTION PLAN. Employee will be entitled to participate in
the Company's 2001 Stock Option Plan (the "Plan") as amended
from time to time, subject to the terms and conditions of the
Plan.
3.4 STOCK OPTION GRANT. As of the Effective Date of this
Agreement, Employee shall be granted an incentive stock
option, pursuant to a Stock Option Agreement as provided for
in the Plan, to purchase 200,000 shares (the "Option Shares")
of the Company's common stock under the Plan at an exercise
price per share equal to the fair market value of the
Company's common stock as determined in good faith by the
Board. Such Option Shares shall vest and become exercisable as
follows: (a) 66,666 on the first anniversary of the Effective
Date; (b) 66,667 on the second anniversary of the Effective
Date; and (c) 66,667 on the third anniversary of the Effective
Date. Additionally, the Employee shall be eligible to receive
annual grants of options of the Company's stock in amounts and
on such terms as shall be determined by the C.E.O. and the
Compensation Committee.
3.5 CHANGE OF CONTROL. Upon a change of control in the Company,
the Employee shall be entitled to the automatic vesting of the
total warrant of 200,000 shares of the Company's common stock
referred to in paragraph 3.4 hereinabove. For the purposes of
this Agreement a change of ownership of 50% or more of the
Company's outstanding shares shall constitute a change in
control.
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS
4.1 REIMBURSABLE EXPENSES. During the Term of the Employee's
employment hereunder, the Company, upon the submission of
proper
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substantiation by the Employee, shall reimburse the Employee
for all reasonable expenses actually and necessarily paid or
incurred by the Employee in the course of and pursuant to the
business of the Company, including annual Association dues and
up to a maximum of Five Thousand Dollars ($5,000) for
continuing education courses necessary to maintain licensure.
4.2 BENEFITS. The Employee and her immediate family shall be
entitled to participate in all medical and hospitalization,
group life insurance, and any and all other plans as are
presently and hereinafter provided by the Company to its
executives. The Employee shall also be entitled to four (4)
weeks paid vacation per year in accordance with the Company's
prevailing policy. Employee shall also be entitled to paid
time off for holidays and sick leave in accordance with the
Company's prevailing policy.
4.3 WORKING FACILITIES. The Company shall furnish the Employee
with an office, and such other facilities and services
suitable to her position and adequate for the performance of
her duties hereunder.
4.4 AUTOMOBILE AND CELLULAR PHONE ALLOWANCE. The Employee shall be
entitled to an automobile and cellular phone allowance of
$500.00 per month, which amount is intended to compensate
Employee for wear and tear and other expenses incurred by
Employee by reason of the use of Employee's automobile or
cellular telephone for Company business from time to time.
5. TERMINATION
5.1 TERMINATION FOR CAUSE. The Company shall at all times have the
right, upon written notice to the Employee, to terminate the
Employee's employment hereunder for "Cause" (as hereinafter
defined). For purposes of the Agreement, the term "Cause"
shall mean (I) the willful failure or refusal of the Employee
to perform, material duties or render material services
assigned to her from time to time by the C.E.O. or the Board
(except during reasonable vacation periods or sick leave),
(II) the indictment of the Employee for a felony, (III) the
association, directly or indirectly, of the Employee for her
profit or financial benefit, with any person, firm,
partnership, association, entity or corporation that competes
with the Company in any material way, excluding purchases of
stock by the Employee not to exceed 5% of any publicly held
Company which so competes, (IV) the disclosing or using of any
material trade secret or confidential information of the
Company at any time by the Employee, except as required in
connection with her duties to the Company, or (V) the
intentional breach by the Employee of this fiduciary duty to
the Company as defined by applicable law. Upon any termination
pursuant to this Section 5.1, the Employee shall be entitled
to be paid her Base Salary to the date of termination and the
amount, if any, of the unpaid Bonus in accordance with Section
3.2 hereof, and the Company shall have no
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further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of
termination).
5.2 DISABILITY. The Company shall at all times have the right,
upon written notice to the Employee, to terminate the
Employee's employment hereunder if the Employee shall, as the
result of mental or physical incapacity, illness or
disability, become unable to perform her duties hereunder for
in excess of ninety (90) days in any 12 month period so long
as the Company is in compliance with applicable law. Upon any
termination pursuant to this Section 5.2, the Company shall
pay to the Employee any unpaid amounts of her Base Salary
accrued through the effective date of termination and the
amount, if any, of the unpaid Bonus in accordance with Section
3.2 hereof, and an additional amount to be determined by the
majority vote of the Board of Directors in their discretion
the Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses
incurred prior to the date of termination, subject, however,
to the provisions of Section 4.1).
5.3 DEATH. In the event of the death of the Employee during the
term of her employment hereunder, the Company shall pay to the
estate of the deceased Employee any unpaid amounts of her Base
Salary accrued through the effective date of her death and the
amount, if any, of the unpaid Bonus in accordance with Section
3.2 hereof, and the Company shall have no further liability
hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the death, subject,
however, to the provisions of Section 4.1). In the event of
the death of the Employee on Company business, the Board of
Directors may consider payment of an additional amount
determined by a majority of the Board to the estate of the
Employee.
5.4 TERMINATION WITHOUT CAUSE. At any time the Company shall have
the right to terminate the Employee's employment hereunder by
written notice to the Employee; provided, however, that the
Company shall continue to pay the Employee the Base Salary for
a period of six (6) months following the effective date of
termination specified in such notice in accordance with the
Company's normal payroll policies and the amount, if any, of
the unpaid Bonus in accordance with Section 3.2 hereof. In
addition, any unvested stock options as described in Section
3.4 shall vest immediately. The Company shall have no further
liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of
termination, subject, however, to the provisions of Section
4.1). The right of the Parties to effectuate an Anniversary
Termination shall be specifically excluded from the effects of
this section 5.4.
5.5 RESIGNATION BY EMPLOYEE. The Employee shall at all times have
the right, upon sixty (60) days prior written notice to the
Company, to terminate the Employee's employment hereunder.
Upon any termination pursuant to this Section 5.5, the
Employee shall be entitled to be paid her Base Salary to the
date
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of termination and the amount, if any, of the unpaid Bonus in
accordance with Section 3.2 hereof, and the Company shall have
no further liability hereunder (other than for reimbursement
for reasonable business expenses incurred prior to the date of
termination, subject, however, to the provisions of Section
4.1).
6. RESTRICTIVE COVENANTS
6.1 NON-COMPETITION. While employed by the Company and for a
period of six (6) months following the termination of the
Employee's employment hereunder (Other than a termination
without cause, as contemplated by Section 5.4 hereof), the
Employee shall not, directly or indirectly, engage in or have
any interest in any sole proprietorship, partnership,
corporation, or business or any other person or entity
(whether as an employee, officer, director, partner, agent,
security holder, creditor, consultant, or otherwise) that
directly or indirectly engages primarily in the outpatient
healthcare business (the "Business") in competition with the
Company and/or its "affiliates" (as such term is defined in
rule 12b-2 as promulgated under the Securities Exchange Act of
1934, as amended) or otherwise similar to the business of the
Company and its affiliates in South Florida.
6.2 NON-DISCLOSURE. During the term of this Agreement and for a
period of one (1) year after termination or expiration
thereof, Employee shall not divulge, communicate, use to the
detriment of the Company or any affiliate or for the benefit
of any other person or persons; or misuse in any way, any
confidential information pertaining to the business of the
Company or any affiliate. Any confidential information or data
now known or hereafter acquired by the Employee with respect
to the business of the Company or any affiliate (which shall
include but not be limited to information concerning the
Company's or any affiliates' financial condition, prospects,
patients, sources, and methods of doing business) shall be
deemed a valuable, special and unique asset of the Company
that is received by the Employee in confidence and as a
fiduciary, and the Employee shall remain a fiduciary to the
Company with respect to all such information except for
information which is in the public domain and any and all
information or documents requested by legal process, that is,
by subpoena, with the Employee to provide sufficient
notification to the Company upon receipt of such legal
process.
6.3 NON-SOLICITATION OF EMPLOYEES AND CUSTOMERS. While employed by
the Company, and for a period of six (6) months following the
date her employment is terminated hereunder, the Employee
shall not, directly or indirectly, for herself or for any
other person, firm, corporation, partnership, association or
other entity, (I) attempt to employ or enter into an
contractual agreement with any employee or former employee of
the Company, unless such employee has not been employed by the
Company for a period in excess of six (6) months, and/or (II)
call on or solicit any of the actual or targeted patients of
the
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Company, nor shall the Employee make known the names and
addresses of such patients.
6.4 BOOK AND RECORDS. All books, records, and accounts relating in
any manner to the customers or clients of the Company, whether
prepared by the Employee or otherwise coming into the
Employee's possession, shall be the exclusive property of the
Company and shall be returned immediately to the Company, on
termination of the Employee's employment hereunder or on the
Company's request at any time.
7. INJUNCTION. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Employee of any of the
covenants contained in Section 6 of this Agreement will cause
irreparable harm and damage to the Company, the monetary
amount of which may be virtually impossible to ascertain. As a
result, the Employee recognizes and hereby acknowledges that
the Company shall be entitled to an injunction from any court
of competent jurisdiction enjoining and restraining any
violation of any or all of the covenants contained in Section
6 of this Agreement by the employee or any of his affiliates,
associates, partners or agents, either directly or indirectly,
and that such right to injunction shall be cumulative and in
addition to whatever other remedies the Company may possess.
8. GOVERNING LAW. This Agreement shall, be governed by and
construed in accordance with a the laws of the State of
Florida without regard to any conflict of law, rule or
principle that would give effect to the laws of another
jurisdiction.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the
subject matter hereof and, upon its effectiveness, shall
supersede all prior agreements, understandings, and
arrangements, both oral and written, between the Employee and
the Company (or any of its affiliates, including, without
limitation, Continucare Corporation) with a respect to such
subject matter. This Agreement may not be modified in any way
unless by a written instrument signed by both the Company and
the Employee.
10. NOTICES. Any notice required or permitted to be given
hereunder shall be deemed given when delivered by hand; or,
alternatively, when delivered via express mail service,
signature required to the parties hereto at their respective
address set forth in this Employment Agreement or to such
other address as either party hereto may from time to time
give notice of to the other. If after two (2) good faith
attempts either party is unable to obtain a signature
verifying delivery or is unable to personally deliver notice,
then notice shall be deemed given when deposited in the United
States mail, by registered or certified mail, return receipt
requested, postage prepaid, to the parties hereto at their
respective address set forth in this Employment Agreement or
to such other address as either party hereto may from time to
time give notice of to the other.
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11. BENEFITS; BINDING EFFECT. This Agreement shall be for the
benefit of and binding upon the parties hereto and their
respective heirs, personal representatives, legal
representative, successors and, where applicable, assigns,
including without limitation any successor to the Company.
Nevertheless, Employee shall not delegate her obligations
under this Agreement to any other person.
12. SEVERABILITY. The invalidity of any one (1) or more of the
words, phrases, sentences, clauses or sections contained in
this Agreement shall not affect the enforceability of the
remaining portions of this Agreement or any part thereof, all
of which are inserted conditionally on their being valid in
law and, in the event that any one (1) or more of the words,
phrases, sentences, clauses or sections contained in this
Agreement shall be construed as if such invalid word or words,
phrase or phrases, sentence or sentences, clause or clauses,
or sections or sections had not been inserted. If such
invalidity is caused by length of time or size of area, or
both, the otherwise invalid provision will be considered to be
reduced to a period of area, which would cure such invalidity.
13. WAIVERS. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not
operate nor be construed as a waiver of any subsequent breach
or violation.
14. DAMAGES. Nothing contained herein shall be construed to
prevent the Company or the Employee from seeking and
recovering from the other damages sustained by either or both
of them as a result of its or her breach of any term or
provision of this Agreement. In the event that either party
hereto brings suit for the collection of any damages resulting
from, or for the injunction of any action constituting a
breach of any of the terms or provisions of this Agreement,
then the party found to be at fault shall pay all reasonable
court costs and attorney's fees of the other.
15. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
16. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in
this Agreement is intended, nor shall be construed to confer
upon or give any person other than the Company, the Employee
and their respective heirs, personal representatives, legal
representatives, successors and assigns, as applicable, any
rights or remedies under or by reason of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
CONTINUCARE CORPORATION:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President / CEO
XXXXX XXXXXXX XXXXXX, Esq.:
/s/ Xxxxx X. Xxxxxx
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XXXXX XXXXXXX XXXXXX, ESQ.
