EMPLOYMENT AGREEMENT
Exhibit 10.1
This EMPLOYMENT AGREEMENT (the
“Agreement”) is made as
of September 2, 2008, by and among WELLCARE HEALTH PLANS, INC., a Delaware
corporation (“WellCare”), COMPREHENSIVE
HEALTH MANAGEMENT, INC., a Florida corporation (the “Corporation”), and Xxx X.
Xxxxx, an individual (“Executive”), with respect to
the following facts and circumstances:
RECITALS
WHEREAS, WellCare and the
Corporation desire for the Corporation to employ Executive as its Chief
Operating Officer and for the Executive to be appointed by WellCare as its Chief
Operating Officer, and Executive desires to accept such employment and
appointment;
NOW, THEREFORE, in consideration of
the mutual promises, covenants and agreements set forth herein, the parties
hereto agree as follows:
ARTICLE
1
EMPLOYMENT,
TERM AND DUTIES
1.1 Employment. The
Corporation shall hereby employ Executive as Chief Operating Officer of the
Corporation, upon the terms and conditions set forth in this
Agreement. During the Term, Executive also shall be appointed as
Chief Operating Officer of WellCare. Executive shall report directly
to the Chief Executive Officer of WellCare, unless otherwise determined by the
Board of Directors of WellCare (the “Board”).
1.2 Term. The
Corporation shall employ Executive, and Executive shall serve as the Chief
Operating Officer of the Corporation commencing upon the Executive’s first day
of employment on or about September 2, 2008
(the “Effective
Date”), and continuing thereafter for a term (the “Term”) of four (4) years,
unless earlier terminated under Article 4; provided, that the
Term shall automatically renew for additional one-year periods unless either the
Corporation or Executive gives notice of non-renewal at least ninety (90) days
prior to expiration of the Term (as it may have been extended by any renewal
period).
1.3 Duties. Executive
shall perform all the duties and obligations reasonably associated with the
positions of Chief Operating Officer and consistent with the Bylaws of WellCare
and the Corporation as in effect from time to time, subject to the supervision
of the Chief Executive Officer of WellCare (or such other individual(s)
designated by the Board), and such other executive duties consistent with the
foregoing as are mutually agreed upon from time to time by Executive and the
Chief Executive Officer of WellCare. Executive shall perform the
services contemplated herein faithfully and diligently. Executive
shall devote substantially all his business time and efforts to the rendition of
such services; provided, that
Executive may participate in social, civic, charitable, religious, business,
educational or professional associations and, with the prior approval of the
Board, serve on the boards of directors of companies, so long as such
participation does not materially interfere with the duties and obligations of
Executive hereunder.
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1.4 Primary Work
Location. Executive shall perform the services hereunder at
the Corporation’s offices located in the metropolitan area of Tampa,
Florida. Executive acknowledges and agrees that the nature of the
Corporation’s business will require travel from time to time. During
the Term, but until the earlier of the second anniversary of the Effective Date
and the date Executive relocates to the Tampa, Florida metropolitan area, the
Corporation also shall pay Executive $5,000 per month, in the aggregate, as a
temporary housing allowance for housing in the Tampa area and for expenses
incurred in traveling between Madison, Connecticut and Tampa,
Florida. To facilitate Executive’s relocation, upon the request of
Executive made within twenty-four months of the Effective Date (and during the
Term), the Corporation shall pay all reasonable expenses associated with a full
service move by a national moving carrier selected by the Corporation for the
purpose of transporting household goods (but excluding any exceptional and
unique furniture or other items) from Madison, Connecticut to the Tampa, Florida
area, up to a maximum of $25,000 (the “Relocation
Expenses”). All Relocation Expenses must be repaid to the Corporation
on a pro-rated basis if Executive resigns or is terminated for Cause less than
one (1) year after the date of Executive’s relocation (the “Reimbursement
Period”). The obligation to repay Relocation Expenses will be
reduced pro rata based upon the number of months of the Reimbursement Period
remaining as of the date of Executive’s termination of employment, and Executive
specifically agrees that such repayment may be deducted from any amounts owed to
Executive.
ARTICLE
2
COMPENSATION
2.1 Salary. In
consideration for Executive’s services hereunder, the Corporation shall pay
Executive an annual salary at the rate of not less than $425,000 per year during
each of the years of the Term, payable in accordance with the Corporation’s
regular payroll schedule from time to time (less any deductions required for
Social Security, state, federal and local withholding taxes, and any other
authorized or mandated similar withholdings). The annual salary shall
be reviewed by the Compensation Committee of the Board (the “Compensation Committee”), or,
if there is none, the Board, no less frequently than annually and may be
increased (but not decreased) from its then-existing level at the discretion of
the Compensation Committee or the Board.
2.2 Bonus.
2.2.1
Annual
Bonuses. Executive shall be entitled to earn bonuses with
respect to each fiscal year (or partial fiscal year) during the Term, based upon
Executive’s achievement of performance objectives set by the Compensation
Committee or the Board after consultation with Executive, with a targeted bonus
of one hundred percent (100%) of Executive’s annual salary for such fiscal year
(or partial fiscal year). Any such bonus earned by Executive shall be
paid annually by March 15 of the year following the end of the fiscal year for
which a bonus has been earned. Executive may also receive special
bonuses in addition to his annual bonus eligibility at the discretion of the
Compensation Committee. Executive must be employed on the bonus
payment date in order to receive the bonus.
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2.3 Incentive
Awards.
2.3.1
Initial Equity
Compensation. As an additional element of compensation to
Executive, in consideration of the services to be rendered hereunder, on the
Effective Date, WellCare shall grant to Executive 55,000 restricted shares of
WellCare’s common stock (the “Restricted Stock”) and an option to
purchase 100,000 shares of WellCare’s common stock for an exercise price per
share equal to the fair market value of one share of WellCare’s common stock as
of the close of business on the Effective Date (the “Option”). These
equity compensation awards shall be granted under and be subject to the terms of
the WellCare Health Plans, Inc. 2004 Equity Incentive Plan (the “2004 Plan”). The
terms and conditions of the Restricted Stock also shall be governed by a
restricted stock award agreement reflecting such grant pursuant to the 2004
Plan, and the terms and conditions of the Option also shall be governed by a
stock option agreement reflecting such grant pursuant to the 2004 Plan and, in
each case, providing for, among other things, the terms set forth in this
Section 2.3. The Option and the Restricted Stock shall vest in equal
annual installments on each of the first through fourth anniversaries of the
Effective Date. Notwithstanding anything in this Agreement or the
applicable stock option agreement to the contrary, the Option cannot be
exercised until WellCare is again current in its periodic report filings with
the United States Securities and Exchange Commission (the “SEC”) and has filed all
periodic reports required to be filed by it with the SEC within the preceding
twelve months.
2.3.2 Future
Awards. In addition to the Restricted Stock and the Option,
during the Term, Executive shall be entitled to earn equity compensation awards
granted under and subject to the terms of the WellCare Health Plans, Inc. 2004
Equity Incentive Plan, or a successor thereto, based upon Executive’s
achievement of performance objectives set by the Compensation Committee or the
Board after consultation with Executive, with an annual equity compensation
award target of two hundred percent (200%) of Executive’s annual salary for such
fiscal year. The number of options, shares of restricted stock or other
equity awards granted will be based on the standard valuation methodologies used
by WellCare under FAS 123(R) and applicable internal policies. The exact
terms of any future awards, as well as the determination as to whether or not
future awards will be granted, remains in the sole and absolute discretion of
the Compensation Committee or the Board, subject to the terms of the Plan.
Until such time as the Compensation Committee or the Board approves a future
award, Executive is not entitled by this Agreement or otherwise to receive any
such award.
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ARTICLE
3
EXECUTIVE
BENEFITS
3.1 Vacation. Executive
shall be entitled to vacation each calendar year in accordance with the general
policies of the Corporation applicable generally to other senior executives of
the Corporation. Unused vacation shall carry over in accordance with
the general policies of the Corporation.
3.2 Employee
Benefits. Executive shall receive all group insurance and
pension plan benefits and any other benefits on the same basis as are available
to other senior executives of the Corporation under the Corporation personnel
policies in effect from time to time. Executive shall receive all
other such fringe benefits as the Corporation may offer to other senior
executives of the Corporation generally under the Corporation personnel policies
in effect from time to time, such as health and disability insurance coverage
and paid sick leave.
3.3 Indemnification. Concurrently
with the execution and delivery of this Agreement, WellCare, the Corporation and
Executive are entering into an indemnification agreement (the “Indemnification
Agreement”).
3.4 Reimbursement for
Expenses. Executive shall be reimbursed by the Corporation for
all documented reasonable expenses incurred by Executive in the performance of
his duties or otherwise in furtherance of the business of the Corporation in
accordance with the policies of the Corporation in effect from time to
time. Any reimbursement under this Section 3.4 that is taxable to
Executive shall be made by December 31 of the calendar year following the
calendar year in which Executive incurred the expense.
ARTICLE
4.
TERMINATION
4.1 Grounds for
Termination.
4.1.1 Death or
Disability. Executive’s employment shall terminate immediately
in the event of Executive’s death, and the Corporation shall have the right to
terminate Executive’s employment by reason of Executive’s Disability by giving
written notice of such termination to Executive. “Disability” means Executive is
unable to engage in any substantial gainful business activity by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or that has rendered Executive unable effectively to carry
out his duties and obligations under this Agreement or unable to participate
effectively and actively in the management of WellCare and the Corporation for a
period of ninety (90) consecutive days or for shorter periods aggregating to one
hundred twenty (120) days (whether or not consecutive) during any consecutive
twelve (12) months of the Term.
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4.1.2 Cause. The
Corporation shall have the right to terminate Executive’s employment by giving
written notice of such termination to Executive upon the occurrence of any one
or more of the following events (“Cause”):
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(a)
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any
willful act or willful omission, other than as a result of Executive’s
Disability, that represents a breach of any of the terms of this Agreement
to the material detriment of WellCare or the
Corporation;
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(b)
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bad
faith by Executive in the performance of his duties, consisting of willful
acts or willful omissions, other than as a result of Executive’s
Disability, to the material detriment of WellCare or the Corporation;
or
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(c)
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Executive’s
conviction of, or pleading guilty or nolo contendere to, a crime that
constitutes a felony involving fraud, conversion, misappropriation, or
embezzlement under the laws of the United States or any political
subdivision thereof, which conviction has become final and
non-appealable.
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4.1.3 Good
Reason. Executive may terminate his employment under this
Agreement by giving written notice to the Corporation upon the occurrence of any
one or more of the following events (“Good Reason”):
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(a)
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a
material diminution during the Term in Executive’s authority, duties or
responsibilities, or any change in Executive’s title, including the
Executive ceasing to serve as the Chief Operating Officer of the senior
surviving entity following any Change of Control or the Executive ceasing
to report directly either to the Chief Executive Officer of WellCare or
the Chief Executive Officer of the senior surviving entity following any
Change of Control;
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(b)
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a
material diminution during the Term in Executive’s base salary or bonus
opportunity;
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(c)
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a
material breach by WellCare or the Corporation of any term of this
Agreement; or
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(d)
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a
change in Executive’s office location to a point more than fifty (50)
miles from Executive’s offices in Tampa,
Florida.
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4.1.4 Change of
Control. For purposes of this Agreement, a “Change of Control” shall mean
the occurrence of any of the following events:
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(a)
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if
any “person” or “group,” as those terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or
any successors thereto, other than an Exempt Person, as defined below, is
or becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act or any successor thereto), directly or indirectly, of
securities of WellCare representing more than 50% of either the then
outstanding shares or the combined voting power of the then outstanding
securities of WellCare; or
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(b)
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during
any period of two consecutive years, individuals who at the beginning of
such period constitute the Board and any new directors whose election by
the Board or nomination for election by WellCare’s stockholders was
approved by at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose election was
previously so approved, cease for any reason to constitute a majority
thereof; or
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(c)
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the
consummation of a merger or consolidation of WellCare with any other
corporation or other entity, other than a merger or consolidation which
would result in all or a portion of the voting securities of WellCare
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of WellCare or such surviving entity outstanding immediately
after such merger or consolidation;
or
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(d)
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the
consummation of a plan of complete liquidation of WellCare or an agreement
for the sale or disposition by WellCare of all or substantially all
WellCare’s assets, other than a sale to an Exempt
Person.
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For purposes of this Agreement, “Exempt Person” shall mean (i)
Xxxxx Private Equity Investors LP, (ii) any person, entity or group controlled
by or under common control with any party included in clause (i), or (iii) any
employee benefit plan of WellCare or any Subsidiary, as defined below, or a
trustee or other administrator or fiduciary holding securities under an employee
benefit plan of WellCare or any Subsidiary, as defined below.
For purposes of this Agreement, “Subsidiary” shall mean a
corporation or other entity of which outstanding shares or ownership interests
representing 50% or more of the combined voting power of such corporation or
other entity entitled to elect the management thereof, or such lesser percentage
as may be approved by the Compensation Committee, are owned directly or
indirectly by WellCare.
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4.1.5 Opportunity to
Cure. Notwithstanding Sections 4.1.2 and 4.1.3, it shall
be a condition precedent to a party’s right to terminate Executive’s employment
for Cause or Good Reason, as applicable, that (a) such party shall have first
given the other party written notice stating with reasonable specificity the
event on which such termination is premised within ninety (90) days after the
party providing such notice becomes aware of such event, and (b) if such event
is susceptible of cure or remedy, such event has not been cured or remedied
within forty-five (45) days after receipt of such notice.
4.1.6 Any Other
Reason. Notwithstanding anything to the contrary herein, the
Corporation shall have the right to terminate Executive’s employment under this
Agreement at any time without Cause by giving written notice of such termination
to Executive, and Executive shall have the right to terminate Executive’s
employment under this Agreement at any time without Good Reason by giving
written notice of such termination to the Corporation.
4.2 Termination
Date. Except as provided in Section 4.1.1 with respect to
Executive’s death or Disability, and subject to Section 4.1.5, any termination
under Section 4.1 shall be effective upon receipt of notice by Executive or
the Corporation, as the case may be, of such termination or upon such other
later date as may be provided herein or specified by the Corporation or
Executive in the notice (the “Termination
Date”).
4.3 Effect of
Termination.
4.3.1 Termination with Cause or
without Good Reason. In the event that Executive’s employment
is terminated by the Corporation with Cause or by Executive without Good Reason,
the Corporation shall pay all Accrued Obligations to Executive in a lump sum in
cash within ten (10) days after the Termination Date, other than amounts of
deferred compensation, which shall be paid pursuant to the terms of the
applicable deferred compensation arrangement and Executive’s elections
thereunder, if applicable. “Accrued Obligations” means the
sum of (a) Executive’s base salary hereunder through the Termination Date to the
extent not theretofore paid, (b) the amount of any incentive compensation,
deferred compensation and other cash compensation accrued by Executive as of the
Termination Date to the extent not theretofore paid, and (c) any vacation pay,
expense reimbursements and other cash entitlements accrued by Executive as of
the Termination Date to the extent not theretofore paid.
4.3.2 Termination without Cause or
with Good Reason. In the event that Executive’s employment is
terminated by the Corporation without Cause or by Executive for Good
Reason:
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(a)
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The
Corporation shall pay all Accrued Obligations to Executive in a lump sum
in cash within ten (10) days after the Termination Date, other than
amounts of deferred compensation, which shall be paid pursuant to the
terms of the applicable deferred compensation arrangement and Executive’s
elections thereunder, if
applicable;
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(b)
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The
Corporation shall pay to Executive, in a lump sum in cash no later than
the Severance Payment Deadline (as defined in Section 4.3.4), an amount
equal to one (1) times the sum of (a) Executive’s annual salary as in
effect on the Termination Date and (b) the average of the two (2) highest
bonuses earned by the Executive
over the three (3) prior years or, if Executive has not been employed for
three (3) years, the target bonus for the year of the Termination
Date. Notwithstanding the foregoing, in the event that
Executive’s employment is terminated by Executive for Good Reason
following a reduction in Executive’s base salary, the amount referenced in
clause (a) in the immediately preceding sentence shall be determined with
respect to Executive’s annual salary as in effect immediately prior to
such reduction.
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(c)
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For
the duration of the applicable COBRA period, the Corporation shall
continue to provide medical, dental and vision care and life insurance
benefits to Executive and/or Executive’s family at least equal to those
which would have been provided to them in accordance with Section 3.2;
provided,
further,
that Executive agrees to elect COBRA coverage to the extent available
under the Corporation’s health insurance plans (and the Corporation shall
reimburse the cost of any premiums for such coverage on an after-tax
basis). Any payment or reimbursement under this Section
4.3.2(c) that is taxable to Executive or any of his family members shall
be made (subject to the provisions of such health care plans that may
require earlier payment) by December 31 of the calendar year following the
calendar year in which Executive or such family member incurred the
expense.
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4.3.3 Termination Due to Death or
Disability. In the event that Executive’s employment is
terminated due to Executive’s death or Disability the Corporation shall pay all
Accrued Obligations to Executive or Executive’s estate in a lump sum in cash
within ten (10) days after the Termination Date, other than amounts of deferred
compensation, which shall be paid pursuant to the terms of the applicable
deferred compensation arrangement and Executive’s elections thereunder, if
applicable.
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4.3.4 Waiver and Release
Agreement. In consideration of the severance payments and
other benefits described in clauses (b) and (c) of Section 4.3.2, to which
severance payments and benefits Executive would not otherwise be entitled, and
as a precondition to Executive becoming entitled to such severance payments and
other benefits under this Agreement, Executive agrees to execute and deliver to
the Corporation within thirty (30) days after the applicable Termination Date a
Waiver and Release Agreement in the form attached hereto as Exhibit A without
alteration or addition other than to include thedate
(the “Release”). If
Executive fails to execute and deliver the Release Agreement within thirty (30)
days after the applicable Termination Date, or if Executive revokes such Release
as provided therein, the Corporation shall have no obligation to provide any of
the severance payments and other benefits described in clauses (b) and (c) of
Section 4.3.2. The timing of severance payments under clause (b) of
Section 4.3.2 upon Executive’s execution and delivery of the Release shall be
further governed by the following provisions (the last date on which such
payments may be made, the “Severance Payment
Deadline”):
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(a)
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In
any case in which the Release (and the expiration of any revocation rights
provided therein) could only become effective in a particular tax year of
Executive, payments conditioned on execution of the release shall be made
within ten (10) days after the Release becomes effective and such
revocation rights have lapsed.
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(b)
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In
any case in which the Release (and the expiration of any revocation rights
provided therein) could become effective in one of two (2) taxable years
of Executive depending on when Executive executes and delivers the
Release, payments conditioned on execution of the Release shall be made
within ten (10) days after the Release becomes effective and such
revocation rights have lapsed, but not earlier than the first business day
of the later of such tax years.
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4.4 Required Delay For Certain
Deferred Compensation and Section 409A. In the event that any
compensation with respect to Executive’s termination is “deferred compensation”
within the meaning of Section 409A of the Code and the regulations promulgated
thereunder (“Section
409A”), the stock of WellCare, the Corporation or any affiliate is
publicly traded on an established securities market or otherwise, and Executive
is determined to be a “specified employee,” as defined in Section
409A(a)(2)(B)(i) of the Code, payment of such compensation shall be delayed as
required by Section 409A. Such delay shall last six (6) months from
the date of Executive’s termination, except in the event of Executive’s
death. Within thirty (30) days following the end of such six
(6)-month period, or, if earlier, Executive’s death, the Corporation shall make
a catch-up payment to Executive equal to the total amount of such payments that
would have been made during the six (6)-month period but for this Section
4.4. Such catch-up payment shall bear simple interest at the prime
rate of interest as published by the Wall Street Journal’s
bank survey as of the first day of the six (6)-month period, which such interest
shall be paid with the catch-up payment. Wherever payments under this
Agreement are to be made in installments, each such installment shall be deemed
to be a separate payment for purposes of Section 409A.
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4.5 Additional
Payments.
4.5.1 Gross Up for Excise
Tax. Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Corporation or WellCare to or for the benefit of Executive
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section 4.5) (a “Payment”) would be subject to
the excise tax imposed by Section 4999 of the Code, or if any interest or
penalties are incurred by Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, being hereinafter
collectively referred to as the “Excise Tax”), then Executive
shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an
amount such that, after payment by Executive of all taxes (including interest or
penalties imposed with respect to such taxes, but not including interest and
penalties imposed by reason of Executive’s failure to file timely tax returns or
to pay taxes shown due on such returns and any interest, additions, increases or
penalties unrelated to the Excise Tax or the Gross-Up Payment), including,
without limitation, the Excise Tax imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payment. Notwithstanding the foregoing provisions of this Section
4.5.1, in the event the amount of Payments subject to the Excise Tax exceeds the
product (the “Parachute Payment
Limit”) of 2.99 and Executive’s applicable “base amount” (as such term is
defined for purposes of Section 4999 of the Code) by less than ten percent (10%)
of Executive’s base salary, Executive shall be treated as having waived such
rights with respect to Payments designated by Executive to the extent required
such that the aggregate amount of Payments subject to the Excise Tax is less
than the Parachute Payment Limit; provided, however, that to the
extent necessary to comply with Section 409A of the Code, the waiver shall be
performed in the order in which each dollar of value subject to a Payment
reduces the amount in excess of the Parachute Payment Limit to the greatest
extent.
4.5.2 Gross-Up
Determinations. Subject to the provisions of
Section 4.5.3, below, all determinations required to be made under this
Section 4.5, including whether and when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be utilized in arriving
at such determination, shall be made by a nationally recognized accounting firm
selected by Executive and reasonably acceptable to the Corporation (the “Accounting Firm”), which shall
provide detailed supporting calculations both to the Corporation and Executive
within fifteen (15) business days of the receipt of notice from Executive that
there has been a Payment, or such earlier time as is requested by the
Corporation. All fees and expenses of the Accounting Firm shall be
borne solely by the Corporation. Any Gross-Up Payment, as determined
pursuant to this Section 4.5, shall be paid by the Corporation to Executive
within five (5) days of the receipt of the Accounting Firm’s
determination. If the Accounting Firm determines that no Excise Tax
is payable by Executive, it shall furnish Executive with a written opinion that
failure to report the Excise Tax on Executive’s applicable federal income tax
return would not result in the imposition of a negligence or similar
penalty. Any good faith determination by the Accounting Firm shall be
binding upon the Corporation and Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Corporation should have
been made (“Underpayment”), consistent
with the calculations required to be made hereunder. In the event
that the Corporation exhausts its remedies pursuant to Section 4.5.3,
below, and Executive thereafter is required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Corporation to
or for the benefit of Executive.
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4.5.3 Claims. Executive
shall notify the Corporation in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Corporation of a
Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than fifteen (15) business days after Executive is
informed in writing of such claim and shall apprise the Corporation of the
nature of such claim and the date on which such claim is requested to be
paid. Executive shall not pay such claim prior to the expiration of
the thirty (30)-day period following the date on which Executive gives such
notice to the Corporation (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the
Corporation notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall: (a) give the
Corporation any information reasonably requested by the Corporation relating to
such claim, (b) take such action in connection with contesting such claim as the
Corporation shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Corporation, (c) cooperate with the
Corporation in good faith in order effectively to contest such claim, and (d)
permit the Corporation to participate in any proceedings relating to such claim;
provided, however, that the
Corporation shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and
shall indemnify and hold Executive harmless, on an after-tax basis, for any
Excise Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this
Section 4.5.3, the Corporation shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner; and Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Corporation shall
determine; provided
further, however, that if the
Corporation directs Executive to pay such claim and xxx for a refund, the
Corporation shall (to the extent permitted by law) advance the amount of such
payment to Executive on an interest-free basis and shall indemnify and hold
Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and provided,
further, that
any extension of the statute of limitations relating to payment of taxes for the
taxable year of Executive with respect to which such contested amount is claimed
to be due is limited solely to such contested amount. Furthermore,
the Corporation’s control of the contest shall be limited to issues with respect
to which a Gross-Up Payment would be payable hereunder and Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
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4.5.4 Refunds. If,
after the receipt by Executive of an amount advanced by the Corporation pursuant
to Section 4.5.3, Executive becomes entitled to receive any refund with
respect to such claim, Executive shall (subject to the Corporation’s complying
with the requirements of said Section 4.5.3)
promptly pay to the Corporation the amount of such refund (together with any
interest paid or credited thereon, after taxes applicable
thereto). If, after the receipt by Executive of an amount advanced by
the Corporation pursuant to Section 4.5.3, a determination is made that
Executive shall not be entitled to any refund with respect to such claim and the
Corporation does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of thirty (30) days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid; and the amount of such advance shall offset, to the extent thereof,
the amount of the Gross-Up Payment required to be paid.
4.5.5 Timing of Gross-Up
Payment. Subject to the foregoing provisions of this Section
4.5 that may require earlier payment, any Gross-Up Payment shall be paid to or
for the benefit of Employee by December 31 of the calendar year following the
calendar year in which the Excise Tax is remitted, or, if no Excise Tax is
remitted, by December 31 of the calendar year following the calendar year in
which there is a final and nonappealable settlement or other resolution of an
audit or litigation relating to the Excise Tax.
4.6 Non-Exclusivity of
Rights. Nothing in this Agreement shall prevent or limit
Executive’s continuing or future participation in any plan, program, policy or
practice provided by the Corporation or its subsidiaries and for which Executive
may qualify, nor shall anything herein limit or otherwise affect such rights as
Executive may have under any other contract or agreement with the Corporation or
its subsidiaries at or subsequent to the Termination Date, which shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement, except as explicitly modified by this Agreement.
4.7 No Set-Off or
Mitigation. The Corporation’s obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any setoff, counterclaim, recoupment,
defense, or other claim, right or action that the Corporation may have against
Executive or others, except to the extent of the mitigation and setoff
provisions provided for in this Agreement. In no event shall
Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to Executive under any of the provisions of
this Agreement and such amounts shall not be reduced whether or not Executive
obtains other employment. The Corporation agrees to pay as incurred,
to the full extent permitted by law, all legal fees and expenses that Executive
may reasonably incur as a result of any contest (regardless of the outcome
thereof) by the Corporation, Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by
Executive about the amount of any payment pursuant to this Agreement), plus, in
each case, interest on any delayed payment at the applicable federal rate
provided for in Section 7872(f)(2)(A) of the Code.
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ARTICLE
5
RESTRICTIVE
COVENANTS
5.1 Confidential
Information.
5.1.1 Obligation to Maintain
Confidentiality. Executive acknowledges that, by reason of
Executive’s employment by the Corporation, the Executive will have access to
confidential information (collectively, “Confidential Information”) of
WellCare, the Corporation and their respective subsidiaries (collectively, the
“WellCare
Companies”). Executive acknowledges that such Confidential
Information is a valuable and unique asset of the WellCare Companies and
covenants that, both during and after the Term, Executive shall not disclose any
Confidential Information to any Person (except as Executive’s duties as a
director, officer or employee of WellCare and the Corporation require) without
the prior written authorization of the Board. The obligation of
confidentiality imposed by this Section 5.1 shall not apply to Confidential
Information that otherwise becomes known to the public through no act of
Executive in breach of this Agreement or which is required to be disclosed by
court order, applicable law or regulatory requirements, nor shall it apply to
Executive’s disclosure of Confidential Information to his attorneys and advisors
in connection with a dispute between Executive and a WellCare
Company.
5.1.2 WellCare Company
Property. 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
Executive 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 a WellCare Company that is collected by the Executive shall be
delivered promptly to such WellCare Company without request by it upon
termination of Executive’s employment. For purposes of this Section
5.1.2, “Intellectual
Property” shall mean patents, copyrights, trademarks, trade dress, trade
secrets, other such rights, and any applications therefor.
5.2 Inventions. Executive
is hereby retained in a capacity such that Executive’s responsibilities may
include the making of technical and managerial contributions of value to the
WellCare Companies. Executive hereby assigns to the applicable
WellCare Company all rights, title and interest in such contributions and
inventions made or conceived by Executive alone or jointly with others during
the Term that relate to the business of such WellCare Company. 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. Executive shall
promptly and fully disclose all such contributions and inventions to the
Corporation and assist the Corporation or any other WellCare Company, as the
case may be, in obtaining and protecting the rights therein (including patents
thereon), in any and all countries; provided, however, that
saidcontributions and inventions shall be the property of the applicable
WellCare Company, whether or not patented or registered for copyright, trademark
or trade name protection, as the case may be. Notwithstanding the
foregoing, no WellCare Company shall have any right, title or interest in any
work product or copyrightable work developed outside of work hours and without
the use of any WellCare Company’s resources that does not relate to the business
of any WellCare Company and does not result from any work performed by Executive
for any WellCare Company.
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5.3 Unfair
Competition.
5.3.1 Scope of
Covenant. Executive agrees that during the Term, and for the
one-year period beginning on the Termination Date, Executive shall not, directly
or indirectly, for himself or on behalf of or in conjunction with any other
Person, without the prior written consent of the Board:
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(a)
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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 Executive ceases
to be employed by the Corporation that are in direct competition with the
benefits or services provided by such WellCare Company in such
state;
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(b)
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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 the
WellCare Group for a period in excess of six (6) months; provided, however, that
the provisions of this clause (b) shall not apply to any member of
Executive’s immediate family;
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(c)
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call
upon any Person who is at the time Executive ceases to be employed by the
Corporation, or who was at any time during the one year period prior to
the date Executive ceases to be employed by the Corporation, a provider,
customer or agent of any WellCare Company for the purpose of soliciting or
selling benefits or services that would violate clause (a) above;
or
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(d)
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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 5.3.1 shall be construed to preclude Executive
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, provided that such permitted activity shall
not relieve the Executive from any other provisions of this
Agreement.
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14
5.3.2 Nondisparagement. Executive
agrees that he will not talk about or otherwise communicate to any third parties
in a malicious, disparaging, or defamatory manner regarding any WellCare
Company, and will not make or authorize to be made any written or oral statement
that may disparage or damage the reputation of the WellCare Companies or their
past or present employees, officers or other representatives.
5.3.3 Reasonableness. It
is agreed by the parties that the foregoing covenants in this Section 5.3
impose a reasonable restraint on Executive in light of the activities and
business of the WellCare Companies on the date of the execution of this
Agreement and the current plans of the WellCare Companies. Executive
acknowledges that the covenants in this Section 5.3 shall not prevent
Executive from earning a livelihood upon the termination of employment
hereunder, but merely prevents unfair competition with the WellCare Companies
for a limited period of time.
5.3.4 Severability. The
covenants in this Section 5.3 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.
5.3.5 Enforcement by the
Corporation not Limited. All of the covenants in this
Section 5.3 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 Executive against any WellCare Company, whether predicated in this Agreement
or otherwise, shall not constitute a defense to the enforcement by the
Corporation or WellCare of such covenants.
5.4 Breach of Restrictive
Covenants. The parties agree that a breach or violation of
this Article 5 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.
15
ARTICLE
6
ARBITRATION
6.1 General. Except
for an action for equitable relief that is permitted to be sought pursuant to
Section 5.4, any
controversy, dispute, or claim between the parties to this Agreement, including
any claim arising out of, in connection with, or in relation to the formation,
interpretation, performance or breach of this Agreement shall be settled
exclusively by arbitration, before a single arbitrator, in accordance with this
Article 6 and the then most applicable rules of the American Arbitration
Association. Judgment upon any award rendered by the arbitrator may
be entered by any state or federal court having jurisdiction
thereof. Such arbitration shall be administered by the American
Arbitration Association. Arbitration shall be the exclusive remedy
for determining any such dispute, regardless of its
nature. Notwithstanding the foregoing, either party may in an
appropriate matter apply to a court for provisional relief, including a
temporary restraining order or a preliminary injunction, on the ground that the
award to which the applicant may be entitled in arbitration may be rendered
ineffectual without provisional relief. Unless mutually agreed by the
parties otherwise, any arbitration shall take place in Tampa,
Florida.
6.2 Selection of
Arbitrator. In the event the parties are unable to agree upon
an arbitrator, the parties shall select a single arbitrator from a list of nine
arbitrators drawn by the parties at random from the “Independent” (or “Gold
Card”) list of retired judges or, at the option of Executive, from a list of
nine persons (which shall be retired judges or corporate or litigation attorneys
experienced in executive employment agreements) provided by the office of the
American Arbitration Association having jurisdiction over Tampa,
Florida. If the parties are unable to agree upon an arbitrator from
the list so drawn, then the parties shall each strike names alternately from the
list, with the first to strike being determined by lot. After each
party has used four strikes, the remaining name on the list shall be the
arbitrator. If such person is unable to serve for any reason, the
parties shall repeat this process until an arbitrator is selected.
6.3 Applicability of
Arbitration; Remedial Authority. This agreement to resolve any
disputes by binding arbitration shall extend to claims against any parent,
subsidiary or affiliate of each party, and, when acting within such capacity,
any officer, director, stockholder, employee or agent of each party, or of any
of the above, and shall apply as well to claims arising out of state and federal
statutes and local ordinances as well as to claims arising under the common
law. In the event of a dispute subject to this paragraph the parties
shall be entitled to reasonable discovery subject to the discretion of the
arbitrator. The remedial authority of the arbitrator (which shall
include the right to grant injunctive or other equitable relief) shall be the
same as, but no greater than, would be the remedial power of a court having
jurisdiction over the parties and their dispute. The arbitrator
shall, upon an appropriate motion, dismiss any claim without an evidentiary
hearing if the party bringing the motion establishes that he or it would be
entitled to summary judgment if the matter had been pursued in court
litigation. In the event of a conflict between the applicable rules
of the American Arbitration Association and these procedures, the provisions of
these procedures shall govern.
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6.4 Fees and
Costs. The Corporation shall be responsible for the costs and
fees of the arbitration.
6.5 Award Final and
Binding. The arbitrator shall render an award and written
opinion, and the award shall be final and binding upon the
parties. If any of the provisions of this paragraph, or of this
Agreement, are determined to be unlawful or otherwise unenforceable, in whole or
in part, such determination shall not affect the validity of the remainder of
this Agreement, and this Agreement shall be reformed to the extent necessary to
carry out its provisions to the greatest extent possible and to insure that the
resolution of all conflicts between the parties, including those arising out of
statutory claims, shall be resolved by neutral, binding
arbitration. If a court should find that the arbitration provisions
of this Agreement are not absolutely binding, then the parties intend any
arbitration decision and award to be fully admissible in evidence in any
subsequent action, given great weight by any finder of fact, and treated as
determinative to the maximum extent permitted by law.
ARTICLE
7
MISCELLANEOUS
7.1 Amendments. The
provisions of this Agreement may not be waived, altered, amended or repealed in
whole or in part except by the signed written consent of the parties sought to
be bound by such waiver, alteration, amendment or repeal.
7.2 Entire
Agreement. This Agreement, the Indemnification Agreement, any
agreements pertaining to the Restricted Stock and the Option and any agreements
pertaining to any other equity awards granted to Executive constitute the total
and complete agreement of the parties with respect to the subject matter hereof
and thereof and supersede all prior and contemporaneous understandings and
agreements heretofore made, and there are no other representations,
understandings or agreements.
7.3 Counterparts. This
Agreement may be executed in one of more counterparts, each of which shall be
deemed and original, but all of which shall together constitute one and the same
instrument.
7.4 Severability. Each
term, covenant, condition or provision of this Agreement shall be viewed as
separate and distinct, and in the event that any such term, covenant, condition
or provision shall be deemed by an arbitrator or a court of competent
jurisdiction to be invalid or unenforceable, the court or arbitrator finding
such invalidity or unenforceability shall modify or reform this Agreement to
give as much effect as possible to the terms and provisions of this
Agreement. Any term or provision which cannot be so modified or
reformed shall be deleted and the remaining terms and provisions shall continue
in full force and effect.
7.5 Waiver or
Delay. The failure or delay on the part of the Corporation or
Executive to exercise any right or remedy, power or privilege hereunder shall
not operate as a waiver thereof. A waiver, to be effective, must be
in writing and signed by the party making the waiver. A written
waiver of default shall not operate as a waiver of any other default or of the
same type of default on a future occasion.
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7.6 Successors and
Assigns. This Agreement shall be binding on and shall inure to
the benefit of the parties to it and their respective heirs, legal
representatives, successors and assigns, except as otherwise provided
herein. Neither this Agreement nor any of the rights, benefits,
obligations or duties hereunder may be assigned or transferred by Executive
except by operation of law. Without the prior written consent of
Executive, this Agreement shall not be assigned by the
Corporation. The Corporation shall require any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform if no such succession
had taken place.
7.7 Necessary
Acts. Each party to this Agreement shall perform any further
acts and execute and deliver any additional agreements, assignments or documents
that may be reasonably necessary to carry out the provisions or to effectuate
the purpose of this Agreement.
7.8 Governing
Law. This Agreement shall be governed by and interpreted,
construed and enforced in accordance with the laws of the State of
Delaware.
7.9 Notices. All
notices, requests, demands and other communications to be given under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service, if personally served on the party to whom notice is to be
given, or 48 hours after mailing, if mailed to the party to whom notice is to be
given by certified or registered mail, return receipt requested, postage
prepaid, and properly addressed to the party at his address set forth as follows
or any other address that any party may designate by written notice to the other
parties:
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To
Executive:
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Xxx
X. Xxxxx
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Address
on file with the Corporation
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To
WellCare or the Corporation:
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0000
Xxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxx
Xxxxx,
XX 00000
Attn:
Chief Executive Officer
Facsimile: (000)
000-0000
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7.10 Headings and
Captions. The headings and captions used herein are solely for
the purpose of reference only and are not to be considered as construing or
interpreting the provisions of this Agreement.
7.11 Construction. All
terms and definitions contained herein shall be construed in such a manner that
shall give effect to the fullest extent possible to the express or implied
intent of the parties hereby.
7.12 Counsel. Executive
has been advised by WellCare and the Corporation that he should consider seeking
the advice of counsel in connection with the execution of this Agreement and the
other agreements contemplated hereby and Executive has had an opportunity to do
so. Executive has read and understands this Agreement, and has sought
the advice of counsel to the extent he has determined appropriate.
7.13 Withholding of
Compensation. Executive hereby agrees that the Corporation may
deduct and withhold from the compensation or other amounts payable to Executive
hereunder or otherwise in connection with Executive’s employment any amounts
required to be deducted and withheld by the Corporation under the provisions of
any applicable Federal, state and local statute, law, regulation, ordinance or
order.
[Remainder
of Page Intentionally Left Blank]
19
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the date first above written.
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WELLCARE
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By:
/s/ Xxxxx
Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
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Title:
President and Chief Executive Officer
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CORPORATION
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COMPREHENSIVE
HEALTH MANAGEMENT, INC.
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By:
/s/ Xxxxx
Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
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Title:
President and Chief Executive
Officer
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EXECUTIVE
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/s/ Xxx
Xxxxx
Xxx
X. Xxxxx
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20
EXHIBIT
A
WAIVER
AND RELEASE AGREEMENT
THIS WAIVER AND RELEASE AGREEMENT (this “Release”) is entered into as
of September 2, 2008 (the “Effective Date”), by Xxx X.
Xxxxx (the “Executive”)
in consideration of severance pay and benefits (the “Severance Payment”) provided
to the Executive by Comprehensive Health Management, Inc., a Florida corporation
(the “Corporation”),
pursuant to clauses (b) and (c) of Section 4.3.2 of the Employment Agreement by
and between the Corporation and the Executive (the “Employment
Agreement”).
1.
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 Corporation and each of its affiliates, parents, successors,
predecessors, and the subsidiaries, directors, owners, members, shareholders,
officers, agents, and employees of the Corporation 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, but is 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 WellCare and/or the Corporation
(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.
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
Corporation.
21
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.
2.
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 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)
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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 or she revokes this Release within the seven
(7) day revocation period, he will not receive the Severance
Payment;
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(f)
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He
has read and understands the Release and further understands that, subject
to the limitations contained herein, it includes a general release of any
and all 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;
and
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(g)
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No
statements made or conduct by the Employer has in any way coerced or
unduly influenced him or her to execute this
Release.
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22
3.
No
Admission of
Liability. This Release does
not constitute an admission of liability or wrongdoing on the part of the
Employer, the Employer does not admit there has been any wrongdoing whatsoever
against the Executive, and the Employer expressly denies that any wrongdoing has
occurred.
4.
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, the Executive is not relying on any
agreements or representations, except those expressly contained in this
Release.
5.
Execution. It is not
necessary that the Employer sign this Release following the Executive’s full and
complete execution of it for it to become fully effective and
enforceable.
6.
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.
7.
Governing
Law. This Release
shall be governed by the laws of the State of Florida, excluding the choice of
law rules thereof.
8.
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 has duly executed
this Agreement as of the day and year first herein above written.
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EXECUTIVE:
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_______________
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Xxx
X. Xxxxx
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23
