EXHIBIT 10.22
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as
of November 18, 2002 by and among WellCare Acquisition Company, a Delaware
corporation ("WellCare"), Comprehensive Health Management, Inc., a Florida
corporation and a wholly-owned subsidiary of WellCare (the "Company"), and
Xxxxxxxx Xxxxxxx, an individual (the "Executive"). The Executive, WellCare and
the Company may sometimes hereinafter be referred to individually as a "party"
or jointly as the "parties."
WHEREAS, the parties wish to enter into an employment agreement to employ
the Executive and to set forth certain terms and conditions of employment
between the Executive and the Company, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants, promises,
representations and warranties set forth herein, and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
the parties), intending to be legally bound hereby, the parties agree as
follows:
1. Term.
The Company shall employ the Executive, and the Executive shall serve the
Company, subject to the terms and conditions of this Agreement, for an initial
term (the "Term") of three years, commencing on November 18, 2002 (the
"Effective Date"). Effective as of the expiration of such initial three-year
Term and as of each annual anniversary date thereof, the Term shall be extended
for an additional one-year period unless, not later than three months prior to
such respective date, either party shall have given notice to the other that the
Term shall not be so extended (a "Notice of Non-Renewal"). Notwithstanding the
foregoing, the Executive's employment by the Company may be terminated prior to
the completion of the then Term, as provided in Section 4 hereof. The period of
time beginning on the Effective Date and ending on the first to occur of (a) the
last day of the Term and (b) the date the Executive ceases to be a full-time
employee of the Company for any reason shall be referred to herein as the
"Employment Period." In the event a Notice of Non-Renewal is delivered by either
party as provided above, then, as of the end of the Term, unless the Executive
is no longer an employee of the Company as of such time, the Executive shall
become an at-will employee of the Company.
2. Employment.
(a) Positions and Reporting. The Company hereby employs the
Executive for the Employment Period as its Senior Vice President and General
Counsel on the terms and conditions set forth in this Agreement. During the
Employment Period, the Executive shall also serve in such executive capacity and
with the responsibility and duties set forth herein (i) on behalf of each of the
direct or indirect wholly owned subsidiaries of WellCare and (ii) so long as it
owns all of WellCare's issued and outstanding shares of common stock, on behalf
of WellCare Holdings, LLC, a Delaware limited liability company ("Holdings"),
which as of the date hereof is the parent entity of WellCare. During the
Employment Period, the Executive shall report directly to and shall be subject
to the authority of (i) the Chief Executive Officer of Holdings, or, if Holdings
ceases to own all of WellCare's issued and outstanding shares of common stock,
then
to the Chief Executive Officer of WellCare (in either case, the "Chief Executive
Officer"), or (ii) at the option of the Company, to any person reporting
directly to the Chief Executive Officer.
(b) Authority and Duties. The Executive shall exercise such
authority, perform such duties and functions and discharge such responsibilities
as are reasonably associated with and required by the Executive's position,
commensurate with the authority vested in the Executive pursuant to this
Agreement. During the Employment Period, the Executive shall devote his full
business time, skill and efforts to the business and affairs of Holdings,
WellCare and their respective direct and indirect subsidiaries (including the
Company) whether currently existing or hereafter acquired or formed
(collectively, the "WellCare Group"). Executive shall perform such duties,
functions and responsibilities to the best of Executive's abilities in a
diligent, trustworthy, businesslike and efficient manner.
3. Compensation and Benefits.
(a) Salary. During the Employment Period, the Company shall pay to
the Executive, as compensation for the performance of the Executive's duties and
obligations under this Agreement, a base salary equal to $250,000 per year (the
"Base Salary"). Such Base Salary will be payable in arrears not less frequently
than monthly in accordance with the normal payroll practices of the Company.
(b) Bonus. The Executive shall be eligible to participate in any
bonus compensation program that may be established by the Board of Directors of
Holdings or, if Holdings ceases to own all of WellCare's issued and outstanding
shares of common stock, then the Board of Directors of WellCare (in either case,
the "Board") for the benefit of senior executives of the WellCare Group. Any
such bonus compensation shall be payable in the form of cash or equity of
Holdings, to be paid by the Company within 30 days after the receipt and
approval by the Board of the WellCare Group's audited fiscal year-end financial
statements. The determination of the bonus amount for any such fiscal year (or
part thereof) shall be based upon the satisfaction of performance criteria for
such fiscal year that will be established by the compensation committee of the
Board (the "Compensation Committee") (or the full Board, if no such committee
shall exist) in its discretion and upon consultation with the Chief Executive
Officer by no later than the earlier of 90 days after the Board has approved the
WellCare Group's budget for such fiscal year or the end of the first fiscal
quarter of such fiscal year. Such performance criteria will include corporate
performance goals consistent with the WellCare Group's business plan and budget
for such fiscal year, as well as individual objectives for the Executive's
performance that are separate from, but are consistent with, such WellCare
Group's business plan and budget. The final determinations as to the actual
corporate and individual performance against the pre-established goals and
objectives, and the amounts of the bonus payout in relationship to such
performance, shall be made by the Compensation Committee (or Board, as
applicable) in its sole discretion, based on the input and recommendations of
the Chief Executive Officer.
(c) Equity distribution. Subject to Board approval, the Executive
will be granted 402,818.29 Class C Common Units of Holdings, representing 1.25%
of the outstanding equity securities of Holdings, calculated on a fully-diluted
basis. This grant will vest in 48 equal monthly installments following the date
of grant, subject to accelerated vesting in full in the
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event of the termination of the Executive's employment by the Company without
Cause, or by the Executive for Good Reason, within 12 months following a change
of control of the WellCare Group. As a condition to the receipt of this equity
grant, the Executive will be required to purchase 3,333.33 Class A Common Units
of Holdings at the current fair market value of $3.00 per Unit, which Units have
a liquidation preference and an 8% annual return, and to become a party to
Holdings' Limited Liability Company Agreement. Such grant and purchase will be
subject to the terms and conditions of Holdings' 2002 Senior Executive Equity
Plan and Holdings' standard form of Subscription Agreement under such Plan.
(d) Insurance Policies. The Company shall purchase, for up to an
annual premium amount of $3,000, and maintain in force during the Employment
Period, life and disability insurance on the Executive, the beneficiary of which
shall be designated by the Executive (the "Executive Policies"). In the event
that the Company cancels the Executive Policies (whether or not in breach of
this Agreement), the Executive shall have the option to continue them in force
at his own expense. Subject to insurability, the Executive Policies shall be
assigned to the Executive upon the termination of Executive's employment with
the Company.
(e) Other Benefits. During the Employment Period, the Executive
shall receive such other pension, health insurance, holiday, vacation and sick
pay benefits and other employee benefits (including participation in any
deferred compensation or other incentive plans) which the Company extends, as a
matter of policy, to its executive employees.
(f) Business Expenses. During the Employment Period, the Company
shall promptly reimburse the Executive for all documented reasonable business
expenses incurred by the Executive in the performance of the Executive's duties
under this Agreement, in accordance with the Company's standard policies and
practices.
(g) Relocation. As part of his duties under this Agreement, the
Executive agrees to relocate his principal residence to a location near Tampa,
Florida, the Company's principal place of business. In order to compensate the
Executive for the expenses incurred in connection with such relocation, the
Company shall (i) pay all reasonable expenses associated with a full service
move by a national moving carrier, to be selected by the Company, for the
purpose of transporting the Executive's household goods from Virginia to
Florida, and (ii) reimburse the Executive for all documented reasonable expenses
incurred by the Executive in connection with such relocation (all such costs and
expenses paid or reimbursed by the Company, collectively, the "Relocation
Expenses"). In the event of the termination of the Executive's employment
hereunder by the Company for Cause (as hereinafter defined) or by Voluntary
Resignation (as hereinafter defined) by the Executive, in either case during the
first twelve months of the Term (the "Reimbursement Period"), the Executive
shall be obligated to repay to the Company a pro-rated portion of the Relocation
Expenses, based upon the number of months of the Reimbursement Period remaining
as of the date of such termination of employment. By way of example, in the
event of such termination after three and one-half months of employment, eight
months of the Reimbursement Period would remain, and the Executive would
therefore be obligated to repay an amount equal to 8/12ths of the Relocation
Expenses. The Executive hereby expressly authorizes the Company, at any time
following the date that the Executive provides notice of his Voluntary
Resignation or the Company provides
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notice of the termination of the Executive's employment for Cause, to deduct
from any amounts owed to the Executive, including any payments of salary or
expenses, any amount payable by the Executive pursuant to this Section 3(g). In
the event that the Company fails to so deduct any such amount, or such
deductions are insufficient to reimburse the Company for the total amount
payable by the Executive pursuant to this Section 3(g), the Executive shall
repay the remaining amount owed promptly upon the Company's written demand for
payment. If the Executive fails to repay such amount after such written demand,
the Executive shall reimburse the Company for all reasonable costs and expenses
incurred by the Company to collect such amount from the Executive, including
court costs and reasonable attorneys' fees.
4. Termination Of Employment. This Agreement and the Executive's
employment with the Company may be terminated prior to the expiration of the
Term in any of the following ways:
(a) Termination Upon Death or Disability. The Employment Period
shall be terminated by the death of the Executive. In the event of the
Disability (as defined below) of the Executive during the Employment Period, the
Company shall have the right to terminate the Employment Period by giving
30-days' advance written notice to that effect to the Executive. For purposes of
this Agreement, the term "Disability" means any disability as defined under the
Company's applicable disability insurance policy or, if no such policy is
available, any physical or mental disability or incapacity that renders the
Executive incapable of performing the essential functions required of the
Executive in accordance with the obligations under Section 2 hereof for a period
of three consecutive months or for shorter periods aggregating to 120 days
(whether or not consecutive) during any consecutive 12-months of the Employment
Period. In the event of any disagreement between the Company and the Executive
as to the Disability of the Executive, such determination shall be made by a
qualified physician to be selected by the Company and reasonably acceptable to
the Executive. The Executive shall be available for examination by such
physician at any reasonable time or times. If the Executive does not cooperate
in such examination(s), then the determination of the Executive's Disability or
non-disability shall be made by the Company in its sole discretion.
(b) Termination for Cause. Prior to the expiration of the Term, the
Company, effective upon the date specified in the notice of such termination,
may terminate the Executive's employment with the Company for Cause (as defined
below). For purposes of this Agreement and subject to the Executive's
opportunity to cure as provided in Section 4(e) hereof, the Company shall have
"Cause" to terminate the Executive's employment hereunder if the Executive shall
commit any of the following:
(i) any act or omission, other than as a result of the
Executive's Disability, which shall represent a willful breach of any of the
material terms of this Agreement;
(ii) wanton and reckless acts or omissions in the performance
of the Executive's duties, other than as a result of the Executive's Disability,
in any such case which are to the material detriment of the WellCare Group;
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(iii) bad faith in the performance of the Executive's duties,
consisting of willful acts or omissions, other than as a result of the
Executive's Disability, to the material detriment of the WellCare Group; or
(iv) any conviction or pleading of guilty or nolo contendre to
a crime that constitutes a felony or that involves financial misconduct under
the laws of the United States or any political subdivision thereof.
(c) Termination Without Cause. Prior to the expiration of the Term,
the Company, effective upon the date specified in the notice of such
termination, may terminate this Agreement and the Executive's employment by the
Company for any reason whatsoever. Prior to the expiration of the Term, the
termination of the Executive's employment by the Company for any reason other
than Cause, Disability or death shall constitute a termination "Without Cause"
hereunder.
(d) Termination by Executive. The Executive, upon 30 days' prior
written notice given to the Company, shall have the right at any time to
terminate the Executive's employment with the Company for any reason. Prior to
the expiration of the Term, the termination by the Executive of the Executive's
employment with the Company for any reason other than for Good Reason (as
defined below) or death shall constitute a "Voluntary Resignation" hereunder.
For purposes of this Agreement and subject to the Company's opportunity to cure
as provided in Section 4(e) hereof, the Executive shall have "Good Reason" to
terminate employment hereunder if such termination shall be the result of:
(i) a failure of the Company to pay the compensation and
benefits set forth in Section 3 hereof;
(ii) any act or omission by the Company which shall represent
a willful breach of any of the material terms of this Agreement; or
(iii) a material diminution in the duties, authority,
responsibilities or reporting relationship of the Executive in a manner
inconsistent with the Executive's position as set forth in Section 2 hereof.
(e) Notice and Opportunity to Cure. Notwithstanding the foregoing,
prior to the expiration of the Term, it shall be a condition precedent to the
Company's right to terminate the Executive's employment for Cause and the
Executive's right to terminate employment for Good Reason that (i) the party
seeking the termination shall first have given the other party written notice
stating with specificity the reason for the termination (the "breach") and (ii)
if such breach is susceptible of cure or remedy, a period of 30 days from and
after the giving of such notice shall have elapsed without the breaching party
having effectively cured or remedied such breach during such 30-day period,
unless such breach cannot be cured or remedied within 30 days, in which case the
period for remedy or cure shall be extended for a reasonable time (not to exceed
an additional 30 days) provided the breaching party has made and continues to
make a diligent effort to effect such remedy or cure.
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5. Consequences of Termination Prior to the Expiration of the Term.
(a) Termination Without Cause or for Good Reason. In the event of
termination of the Executive's employment with the Company, either by the
Company Without Cause or by the Executive for Good Reason, in each case, prior
to the expiration of the Term, (i) the Company shall continue to pay the
Executive the Base Salary for a period of 12 months (the "Separation Period")
following the effective date of such termination, and (ii) the Company shall
continue during the Separation Period, at the Company's expense, coverage for
the Executive (and his beneficiaries) under the group medical care, disability
and life insurance benefit plans or arrangements in which the Executive is
participating at the time of termination, including, without limitation, the
Executive Policies (or, if such coverage is precluded by the terms of the
Company's insurance policies, the Company shall make a cash payment to the
Executive in an amount sufficient to allow the Executive to obtain comparable
benefits for such period); provided, however, that the Company's obligation to
provide such coverage shall be terminated if the Executive obtains comparable
substitute coverage from another employer at any time during the Separation
Period.
(b) Termination Upon Disability. In the event of termination of the
Executive's employment hereunder by the Company on account of Disability prior
to the expiration of the Term, (i) the Company shall continue to pay the
Executive's Base Salary as in effect immediately prior to such termination for
the shorter of (x) six months following the first date of Disability and (y) the
then-remainder of the Term, and (ii) the Company shall continue for six months,
at the Company's expense, coverage for the Executive (and his beneficiaries)
under the group medical care, disability and life insurance benefit plans or
arrangements in which the Executive is participating at the time of termination,
including, without limitation, the Executive Policies (or, if such coverage is
precluded by the terms of the Company's insurance policies, the Company shall
make a cash payment to the Executive in an amount sufficient to allow the
Executive to obtain comparable benefits for such period); provided, however,
that the Company's obligation to provide such coverage shall be terminated if
the Executive obtains comparable substitute coverage from another employer at
any time during such continuation period.
(c) Termination Upon Death. In the event of termination of the
Executive's employment with the Company prior to the expiration of the Term on
account of the Executive's death, (i) the Company shall pay to the Executive's
heirs, estate or personal representatives under law, as applicable, a lump sum
cash payment equal to six months of the Executive's Base Salary and (ii) the
Company shall continue for six months, at the Company's expense, coverage for
the Executive's beneficiaries under the group medical care, disability and life
insurance benefit plans or arrangements in which the Executive was participating
at the time of death, including, without limitation, the Executive Policies (or,
if such coverage is precluded by the terms of the Company's insurance policies,
the Company shall make a cash payment to the Executive's heirs, estate or
personal representatives in an amount sufficient to allow the Executive's
beneficiaries to obtain comparable benefits for such period). The Executive's
beneficiary or estate shall not be required to remit to the Company any payments
received pursuant to any Executive Policies.
(d) Voluntary Resignation by Executive or Termination With Cause. In
the event of the termination of the Executive's employment hereunder by the
Company for Cause or
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by Voluntary Resignation by Executive, in each case, prior to the expiration of
the Term, the Company shall have no responsibility or obligation to make any
payments or provide any benefits to the Executive except to the extent provided
in Section 5(e) hereof.
(e) Accrued Rights. Notwithstanding the foregoing provisions of this
Section 5, in the event of termination of the Executive's employment hereunder
for any reason, the Company shall pay to or on behalf of the Executive all
unpaid Base Salary accrued through the effective date of termination and a lump
sum cash payment for all unused vacation accrued by the Executive through the
effective date of termination, and the Company shall provide to or on behalf of
the Executive all payments and other benefits accrued for the Executive through
the effective date of termination under all equity arrangements, benefit plans,
programs and arrangements in which the Executive participated during the
Employment Period.
(f) No Other Payment Obligations. Except as expressly provided for
in Sections 5(a) through 5(e) above or as required by law, upon the date the
Executive ceases to be employed by the Company (i) all of the Executive's rights
to salary, bonus and other benefits hereunder shall cease and (ii) no other
severance or other compensation or benefits shall be payable by any member of
the WellCare Group to the Executive.
(g) Conditions to Separation of Employment Benefits. The Company
shall have the right to seek repayment of any separation payments and benefits
provided by this Section 5 in the event that the Executive fails to honor in
accordance with their terms the provisions of Sections 6, 7 and 8 hereof. In
addition, the Company may require, as a condition of providing any separation
benefits to the Executive, that the Executive execute a mutually acceptable
release of the Company that shall be negotiated in good faith by both parties.
6. Confidential Information.
(a) The Executive acknowledges that, by reason of the Executive's
employment by the Company, the Executive will have access to confidential
information of the WellCare Group, including, without limitation, information
and knowledge pertaining to products, services, benefits, policies, inventions,
discoveries, improvements, innovations, designs, ideas, trade secrets,
proprietary information, advertising, marketing, distribution and sales methods,
sales and profit figures, provider, customer and client lists and relationships
between the WellCare Group and providers, regulators, sales representatives,
distributors, customers, clients, providers, suppliers and others who have
business dealings with them (collectively, "Confidential Information"). The
Executive acknowledges that such Confidential Information is a valuable and
unique asset of the WellCare Group and covenants that, both during and after the
Employment Period, the Executive will not disclose any Confidential Information
to any third party (except as the Executive's duties as an employee of the
Company may require) without the prior written authorization of the Chief
Executive Officer. The obligation of confidentiality imposed by this Section 6
shall not apply to Confidential Information that otherwise becomes generally
known to the public through no act of the Executive in breach of this Agreement
or which is required to be disclosed by court order, applicable law or
regulatory requirements.
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(b) All records, designs, business plans, financial statements,
customer lists, manuals, memoranda, lists, research and development plans,
Intellectual Property (as defined below) and other property delivered to or
compiled by the Executive by or on behalf of the WellCare Group or its
providers, clients or customers that pertain to the business of the WellCare
Group shall be and remain the property of the WellCare Group 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 the WellCare Group that is collected by the Executive shall be
delivered promptly to the Company without request by it upon termination of the
Executive's employment. For purposes of this Agreement, "Intellectual Property"
shall mean patents, copyrights, trademarks, trade dress, trade secrets, other
such rights, and any applications.
7. Inventions.
The Executive is hereby retained in a capacity such that the Executive's
responsibilities may include the making of technical and managerial
contributions of value to the WellCare Group. The Executive hereby assigns to
the applicable member of the WellCare Group all rights, title and interest in
such contributions and inventions made or conceived by the Executive alone or
jointly with others during the Employment Period which relate to the business of
the WellCare Group. This assignment shall include (a) the right to file and
prosecute patent applications on such inventions in any and all countries, (b)
the patent applications filed and patents issuing thereon, and (c) the right to
obtain copyright, trademark or trade name protection for any such work product.
The Executive shall promptly and fully disclose all such contributions and
inventions to the Company and assist the Company or any other member of the
WellCare Group, as the case may be, in obtaining and protecting the rights
therein (including patents thereon), in any and all countries; provided,
however, that said contributions and inventions will be the property of the
applicable member of the WellCare Group, whether or not patented or registered
for copyright, trademark or trade name protection, as the case may be.
Notwithstanding the foregoing, no member of the WellCare Group shall not have
any right, title or interest in any work product or copyrightable work developed
outside of work hours and without the use of any of the WellCare Group's
resources that does not relate to the business of the WellCare Group and does
not result from any work performed by the Executive for the WellCare Group.
8. Unfair Competition.
(a) Scope of Covenant. The Executive agrees that during the
Employment Period, and for a period of 12 months after the expiration of the
Employment Period, the Executive shall not, directly or indirectly, for the
Executive or on behalf of or in conjunction with any other person, company,
partnership, business, group, venturer or other entity (each, a "Person"),
without the prior written consent of the Company:
(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, that are in direct
competition with the benefits or services provided by any member of the WellCare
Group
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within any of the States of Florida, Connecticut or New York or any other state
that any member of the WellCare Group is doing business (the "Territory") at the
time the Executive ceases to be employed by the Company;
(ii) recruit, hire or solicit any employee or former employee
of the WellCare Group or encourage any such employee to leave employment by the
WellCare Group, unless such former employee has not been employed by the
WellCare Group for a period in excess of six months;
(iii) call upon any Person who is at the time Executive ceases
to be employed by the Company, or who was at any time during the one year period
prior to the date the Executive ceases to be employed by the Company, a
provider, customer or agent of any member of the WellCare Group for the purpose
of soliciting or selling benefits or services in competition with any member of
the WellCare Group within the Territory; or
(iv) request or advise any provider, customer or agent of any
member of the WellCare Group to withdraw, curtail or cancel its business
dealings with the WellCare Group;
provided, however, that nothing in this Section 8(a) shall be construed to
preclude the Executive from making any investment in the securities of any
business enterprise whether or not engaged in competition with any member of the
WellCare Group, 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 2% of the outstanding voting securities of such enterprise, provided
that such permitted activity shall not relieve the Executive from any other
provisions of this Agreement.
(b) Reasonableness. It is agreed by the parties that the foregoing
covenants in this Section 8 impose a reasonable restraint on the Executive in
light of the activities and business of the WellCare Group on the date of the
execution of this Agreement and the current plans of the WellCare Group. The
Executive acknowledges that the covenants in this Section 8 shall not prevent
the Executive from earning a livelihood upon the termination of employment
hereunder, but merely prevents unfair competition with the WellCare Group for a
limited period of time. Notwithstanding the foregoing, it is the intent of the
Company and the Executive that such covenants be construed and enforced in
accordance with the changing activities, business and locations of the WellCare
Group throughout the term of this covenant.
(c) Severability. The covenants in this Section 8 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. In the event any court of competent
jurisdiction shall determine that the scope, time or territorial restrictions
set forth herein are unreasonable, then it is the intention of the parties that
such restrictions be enforced to the fullest extent that such court deems
reasonable, and this Agreement shall thereby be reformed.
(d) Enforcement by the Company not Limited. All of the covenants in
this Section 8 shall be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
of the Executive against any
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member of the WellCare Group, whether predicated in this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of such
covenants.
9. Breach of Restrictive Covenants. The parties agree that a breach or
violation of Sections 6, 7 or 8 hereof will result in immediate and irreparable
injury and harm to the innocent party, and that such innocent party shall have,
in addition to any and all remedies of law and other consequences under this
Agreement, the right to seek an injunction, specific performance or other
equitable relief to prevent the violation of the obligations hereunder.
10. Withholding of Taxes. All payments required to be made by the
Company to the Executive under this Agreement shall be subject to the
withholding of such amounts, if any, relating to tax, and other payroll
deductions as the Company may reasonably determine it should withhold pursuant
to any applicable law or regulation.
11. Representations and Warranties. The Executive represents and
warrants that the Executive is entering into this Agreement voluntarily and that
the Executive's employment hereunder and compliance with the terms and
conditions of this Agreement will not conflict with or result in the breach of
any agreement to which the Executive is a party or by which the Executive may be
bound, or any legal duty owed by the Executive to another.
12. Director and Officer Insurance. During the Employment Period, the
Company shall use its best efforts to obtain and maintain director's and
officer's insurance for the Executive (in such amounts as are appropriate for
businesses comparable to that of the Company).
13. Indemnification. The Company shall indemnify the Executive, in his
capacity as an officer of the Company and any member of the WellCare Group, to
fullest extent permitted under the By-Laws of the Company or such member of the
WellCare Group and applicable law.
14. Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt, or by facsimile transmission against
facsimile confirmation, or by email against confirmation of receipt (but only if
a copy if also sent by first class United States mail (postage prepaid) on the
same day or on the next business day), or mailed by internationally recognized
overnight courier prepaid, to the parties at the following addresses or
facsimile numbers:
If to the Company to:
Comprehensive Health Management, Inc.
0000 Xxxxx Xxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Facsimile No.: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxx.xxx
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If to the Executive to:
Xxxxxxxx Xxxxxxx
___________________
___________________
Email: _____________
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 14, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided for in this Section 14, be deemed given upon facsimile confirmation,
(iii) if delivered by email to the email address as provided for in this Section
14, be deemed given upon confirmation of receipt (provided that a copy is also
sent by first class United States mail as provided for in this Section 14) and
(iv) if delivered by overnight courier to the address as provided in this
Section 14, be deemed given on the earlier of the first business day following
the date sent by such overnight courier or upon receipt. Any party from time to
time may change its address, facsimile number or other information for the
purpose of notices to that party by giving notice specifying such change to the
other party hereto.
15. Entire Agreement; Modification. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof. This Agreement may be
amended or modified only by an instrument in writing duly executed by the
parties to this Agreement.
16. Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
17. No Assignment; Binding Effect. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned (by operation of law or
otherwise) by any party without the prior written consent of the other party and
any attempt to do so will be void; provided, however, that the Company may, upon
notice to the Executive but without being obligated to obtain the Executive's
consent, assign this Agreement or any of its rights, interests or obligations
hereunder to an affiliate of the Company; provided, further, that no such
assignment shall relieve the Company of any of its obligations hereunder.
Subject to the preceding sentence, this Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
18. Survival. Notwithstanding anything to the contrary contained in this
Agreement, the provisions of Sections 5 through 25 of this Agreement shall
survive the termination or expiration, for any reason, of this Agreement.
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19. Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
20. Severability. Any term or provision of this Agreement that is
invalid, illegal or unenforceable in any situation in any jurisdiction shall not
affect the validity, legality or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. If such
invalidity, illegality or unenforceability is caused by length of time or size
of area, or both, the otherwise invalid provision shall be, without further
action by the parties, automatically amended to such reduced period or area as
would cure such invalidity, illegality or unenforceability; provided, however,
that such amendment shall apply only with respect to the operation of such
provision in the particular jurisdiction in which such determinations is made.
21. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Florida, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Florida or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Florida.
22. Jurisdiction; Venue. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in any Florida state or
federal court sitting in the City of Tampa, Florida, and each party hereby
irrevocably accepts and consents to the exclusive personal jurisdiction of those
courts for such purpose. In addition, each party hereby irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any action or proceeding arising out of or
relating to this Agreement or any judgment entered by any court in respect
thereof brought in any state or federal court sitting in the city of Tampa,
Florida, and further irrevocably waives any claim that any action or proceeding
brought in any such court has been brought in an inconvenient forum.
23. Waiver of Trial by Jury. IN ANY ACTION OR PROCEEDING ARISING
HEREFROM, THE PARTIES HERETO CONSENT TO TRIAL WITHOUT A JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER OR
THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR PROCEEDING.
24. Interpretation. The parties hereto agree that this Agreement is the
product of negotiation between sophisticated parties and individuals, all of
whom were represented by counsel, and each of whom had an opportunity to
participate in and did participate in, the drafting of each provision hereof.
Accordingly, ambiguities in this Agreement, if any, shall not be construed
strictly or in favor of or against any party hereto but rather shall be given a
fair and reasonable construction.
25. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WELLCARE:
WELLCARE ACQUISITION COMPANY
By /s/ Xxxx X. Xxxxx
---------------------------------------
Xxxx Xxxxx
President and Chief Executive Officer
COMPANY:
COMPREHENSIVE HEALTH MANAGEMENT, INC.
By /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx Xxxxx
President and Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxxx Xxxxxxx
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