VOLUNTARY SEPARATION AGREEMENT AND RELEASE
This memorandum sets forth the terms and conditions of the Voluntary
Separation Agreement and Release ("Agreement") between Xxxx Xxxxx, on his own
behalf and on behalf of his estate, heirs, executors, administrators, attorneys,
successors and assigns (hereinafter collectively referred to as the "Employee"),
and The WellCare Management Group, Inc., and its parent(s), branches, agencies,
subsidiaries, affiliates, related companies and divisions and their respective
successors, assigns, representatives, agents, officers, directors, shareholders,
and employees, whether current or former (hereinafter collectively referred to
as "WellCare").
WHEREAS, the Employee and WellCare have agreed that the Employee's
employment with WellCare will be terminated effective April 3, 1998 (the
"Termination Date");
WHEREAS, the Employee will receive his base salary, less applicable
deductions, through April 3, 1998, and shall be paid for all unused accrued
vacation in the amount of $13,527.26, less applicable deductions;
WHEREAS, the Employee shall voluntarily resign as an officer of WellCare,
effective April 3, 1998. Notwithstanding anything to the contrary in this
Agreement, April 3, 1998, shall be his final date of employment with WellCare in
any capacity.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and undertakings set forth herein, the Employee and WellCare agree as follows:
1. The employment agreement dated May 29, 1996, by and between the Employee
and WellCare, as amended by the Addendum dated April 21, 1997 ("Employment
Agreement"), and all rights and obligations of the Employee and WellCare
thereunder shall terminate effective at 5:00 p.m. on the seventh day after
Employee executes this Agreement, provided, however, that Employee does not
revoke this Agreement within seven (7) days after signing it pursuant to
paragraph 15 of this Agreement.
2. As consideration for the Employee's release of any and all claims
against WellCare as set forth in paragraph 3 herein, WellCare agrees:
(a) to provide the Employee with bi-weekly payments of $6,730.77, less
applicable deductions, for the period from April 4, 1998 through May 30, 1999;
provided, however, that in the event the Employee secures Alternative
Employment, as defined below, said payments shall cease as of the date the
Alternative Employment commences. For purposes of this Agreement, "Alternative
Employment" shall mean any provision of services to a health maintenance
organization that is in competition with
WellCare in the States of Connecticut or New York. During the period in which
the Employee is receiving payments pursuant to this paragraph 2(a), the Employee
shall be reasonably available via telephone or in person to answer questions
from Xxxxxx X. Xxxx, Chief Executive Officer of WellCare, or his designee,
relating to those services the Employee performed prior to the termination of
his employment. In the event that a "Change in Control," as defined in Schedule
3.3(c) annexed to the Employment Agreement, occurs prior to May 30, 1999, at the
Employee's option the remaining bi-weekly payments due under the paragraph 2(a)
shall be accelerated and shall be paid to Employee in a single lump sum within
sixty (60) days of receipt of the Employee's request; provided, however,
WellCare shall be entitled to recover from the Employee a ratable portion of
such lump sum payment if the Employee commences Alternative Employment prior to
May 30, 1999. The Employee will notify WellCare in writing within five business
days of his procuring Alternative Employment;
(b) to pay for the continuation of the Employee's group health and dental
insurance coverage, pursuant to COBRA, if eligible, for a period ending upon the
earlier of (i) May 30, 1999, or (ii) the date upon which the Employee procures
Alternative Employment. After that date, WellCare will allow the Employee to
continue such coverage at the Employee's own expense for the remainder of any
COBRA continuation period, pursuant to applicable law; and
(c) to waive, as of the date of its execution of this Agreement, all rights
it may have pursuant to paragraph 6 of the Employment Agreement.
3. In exchange for the payments and benefits set forth in paragraph 2 above
and for other good and valuable consideration, the Employee hereby releases
WellCare from any and all liability for any claims against WellCare as of the
date of his execution of this Agreement, whether known or unknown to him, that
may arise under express or implied contract, federal, state or local statute,
executive order, law, ordinance, tort or other obligations arising out of public
policy. This release includes but is not limited to any claims for
discrimination on the basis of race, color, sex, national origin, religion,
disability, age, marital status and veteran status, including but not limited to
any claims arising under Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1866, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967, the Older Workers Benefit Protection Act of 1990, the
Family and Medical Leave Act of 1993, the Employee Retirement Income Security
Act, the Americans with Disabilities Act of 1990, the Fair Labor Standards Act
of 1938, the New York State Human Rights Law, and all claims for wages, monetary
or equitable relief, vacation, other employee fringe benefits, benefit plans,
medical plans, 401(k) plans, stock options plans or attorneys' fees. This
Agreement does not constitute any admission by WellCare that it
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has violated any such law or legal obligation with respect to any aspect of the
Employee's employment or termination therefrom.
4. The Employee represents, warrants and acknowledges that WellCare owes
him no wages, commissions, bonuses, sick pay, personal leave pay, holiday pay,
severance pay, vacation pay, tuition reimbursement, stock options, auto
allowance, 401(k) Plan benefits or other compensation or benefits or payments or
forms of remuneration of any kind or nature, other than that specifically
provided for in this Agreement. Reference is made to Section 3.2 of the
Employment Agreement and to the Option Agreements dated May 29, 1996
(collectively, the "1996 Option Agreement"), and the Option Agreement dated June
27, 1997 (the "1997 Option Agreement" and together with the 1996 Option
Agreements, collectively the "Option Agreements"). Employee and WellCare hereby
acknowledge that: (i) 50% of the options issued under the 1996 Option Agreement
(or options to purchase an aggregate of 10,000 shares) are currently
exercisable; (ii) none of the options granted under the 1997 Option Agreement
are currently exercisable; (iii) as a result of his termination of employment,
no further options granted under the Option Agreements or otherwise shall become
exercisable; and that (iv) under the 1996 Option Agreement, the Employee has
three months from the date of termination of employment in which to exercise the
10,000 options that are currently exercisable as of the date hereof. Employee
further acknowledges and agrees that WellCare has no further obligation to issue
any options to the Employee under the Employment Agreement or otherwise.
5. The Employee confirms that he has delivered to WellCare any and all
property and equipment of WellCare, including his beeper, phone, keys, laptop or
other computers, and any other WellCare items he may have had in his possession.
6. The Employee represents and agrees that: (a) he has not filed or caused
to be filed any lawsuits against WellCare in any court whatsoever; (b) he has
not filed or caused to be filed any charges or complaints against WellCare with
any municipal, state or federal agency charged with the enforcement of any law;
and (c) pursuant to and as a part of the Employee's complete, total and
irrevocable release and discharge of WellCare, the Employee agrees, to the
fullest extent permitted by law, not to file or cause to be filed a charge,
complaint, grievance or demand for arbitration in any forum, which relates to
any matter that involves WellCare and that occurred on or before the date of the
Employee's execution of this Agreement.
7. The Employee agrees not to disclose the terms, contents or execution of
this Agreement, the claims that have been or could have been raised against
WellCare as of the date of execution of this Agreement, and the facts and
circumstances underlying any such claims except in the following circumstances:
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a. The Employee may disclose the terms of this Agreement to his
immediate family, so long as such family member agrees to be bound by the
confidential nature of this Agreement;
b. The Employee may disclose the terms of this Agreement to (i) his
counsel, tax advisors, auditors or accountants, so long as such persons agree in
writing to be bound by the confidential nature of this Agreement, or (ii) taxing
authorities, if requested by such authorities and so long as they are advised in
writing of the confidential nature of this Agreement; and
c. Pursuant to the order of a court or governmental agency of competent
jurisdiction, or otherwise as may be required by law, or for purposes of
securing enforcement of the terms and conditions of this Agreement.
8. In the event the Employee is asked about the circumstances of his
termination by a prospective employer he may state only that WellCare and the
Employee mutually agreed to terminate his employment so that Employee could seek
other opportunities.
9. The terms, contents or execution of this Agreement, any claims that have
been or could have been raised against WellCare as of the date of execution of
this Agreement, and the facts and circumstances underlying any such claims shall
not be admissible in any litigation, arbitration or proceeding in any forum for
any purpose other than to secure enforcement of the terms and conditions of this
Agreement, except as required by law.
10. Employee agrees not to issue any communication, written or otherwise,
that disparages, criticizes or otherwise reflects adversely or encourages any
adverse action against WellCare, except if testifying truthfully under oath
pursuant to any lawful court order or subpoena or otherwise responding to or
providing disclosures required by law.
11. Except as required by law, Employee specifically agrees that he will
not at any time, in any fashion, form, or manner, either directly or indirectly,
divulge, disclose, or communicate to any person, firm or corporation, in any
manner whatsoever any information of any kind, nature, or description concerning
any matters affecting or relating to the business of WellCare, including,
without limiting the generality of the foregoing, the names of any of its
customers, the prices it obtains or has obtained, or at which it sells or has
sold its products or services, or any other information of, about, or concerning
the business of WellCare, its manner of operation, its plans, processes, or
other data of any kind, nature, or description, without regard to whether any or
all of the foregoing matters would be deemed confidential, material, or
important, the parties hereto stipulating that as between them,
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the same are important, material, and confidential, and gravely affect the
successful conduct of the business of WellCare and its goodwill, and that any
breach of the terms of this paragraph is a material breach of this Agreement.
Employee further confirms that he has delivered to WellCare any and all
documents and other tangible items containing information as described in this
paragraph.
12. Upon service on the Employee, or anyone acting on his behalf, of any
subpoena, order, directive or other legal process requiring the Employee to
engage in conduct encompassed within paragraphs 7, 9, 10 or 11 of this
Agreement, the Employee or his attorney shall immediately notify Xxxx X. Xxxxxx,
Esq., Xxxxxxx Xxxxxx & Green, P.C., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and Xxxxxx X. Xxxx, Chief Executive Officer of WellCare in writing within two
business days of such service.
13. Employee agrees that he will assist and cooperate with WellCare in
connection with the defense or prosecution of any claim that may be made against
or by WellCare, or in connection with any ongoing or future investigation or
dispute or claim of any kind involving WellCare, including any proceeding before
any arbitral, administrative, judicial, legislative, or other body or agency,
including testifying in any proceeding to the extent such claims, investigations
or proceedings relate to services performed or required to be performed by
Employee, pertinent knowledge possessed by Employee, or any act or omission by
Employee. Employee further agrees to perform all acts and execute and deliver
any documents that may be reasonably necessary to carry out the provisions of
this paragraph.
14. The failure of the Employee or WellCare to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
thereof, or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
15. The Employee acknowledges that he has been offered twenty-one (21) days
from the date he received this Agreement within which to consider its terms, and
that he has been advised that during such period he should consult an attorney
regarding the terms of this Agreement. The Employee further acknowledges that
his signature below indicates that he is entering into this Agreement freely,
knowingly and voluntarily with a full understanding of its terms. The terms of
this Agreement shall not become effective or enforceable until seven (7) days
following the date of the Employee's execution of this Agreement, during which
time the Employee may revoke this Agreement by notifying WellCare in writing, by
registered letter delivered to the attention of the undersigned representative
of WellCare. Any such revocation must be received by 5:00 p.m. on or before the
seventh day.
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16. This Agreement constitutes the entire agreement between the Employee
and WellCare, and supersedes and cancels all prior oral and written agreements,
if any, between the Employee and WellCare. Employee affirms that, in entering
into this Agreement, Employee is not relying upon any oral or written promise or
statement made by anyone at any time on behalf of WellCare.
17. If any of the provisions, terms or clauses of this Agreement are
declared illegal, unenforceable or ineffective in a legal forum, those
provisions, terms and clauses shall be deemed severable, such that all other
provisions, terms and clauses of this Agreement shall remain valid and binding
upon both parties; provided, however, if the Employee's release of WellCare as
contained in paragraph 3 of this Agreement is declared by a court of competent
jurisdiction to be illegal, unenforceable or ineffective and the Employee
asserts against WellCare claims that the parties intended to be released under
Paragraph 3, the Employee shall return to WellCare all monies paid to and the
value of all benefits received by him under this Agreement within ten (10)
business days of any such determination.
18. The Employee agrees that in the event he breaches the terms of this
Agreement, WellCare may immediately cease all payments pursuant to this
Agreement, and WellCare shall be entitled to recover from the Employee all
amounts paid to the Employee pursuant to this Agreement as well as all costs and
reasonable attorneys' fees incurred as a result of WellCare's attempt to redress
such breach or to enforce WellCare's rights and protect WellCare's legitimate
interests.
19. The law of the State of New York will control any questions concerning
the validity and interpretation of this Agreement, without regard to principles
of conflicts of law. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in accordance with
the applicable rules then obtaining of the American Arbitration Association and
judgment on the award rendered may be entered in any court having jurisdiction
thereof. The prevailing party in any such proceeding shall be entitled to
reimbursement of its costs and expenses (including reasonable attorneys' fees)
in connection with such proceedings.
20. This Agreement has been reached by mutual and purely voluntary
agreement of the parties, and the parties, by their signatures indicate their
full agreement with, and understanding of, its terms. Employee acknowledges that
Employee has been given a reasonable period of time to consider the Agreement,
and that this Agreement has binding legal effect.
21. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, assigns, heirs, executors and legal
representatives.
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22. This Agreement may not be changed or altered, except by a writing
signed by the Employee and an authorized officer of WellCare.
/s/ Xxxx Xxxxx
-------------------------
Xxxx Xxxxx
STATE OF CONNECTICUT )
) ss.:
COUNTY OF NEW HAVEN )
On this 16th day of April, 1998, before me personally came Xxxx Xxxxx, to
me known to be the individual described in the foregoing instrument, who
executed the foregoing instrument in my presence, and who duly acknowledged to
me that he executed the same.
/s/ Xxxxxxxx X. Xxxxxxxxxx
------------------------------
Notary Public
My Commission Expires Aug. 31, 1999
THE WELLCARE MANAGEMENT GROUP,
INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------
Xxxxxx X. Xxxx, President/CEO
STATE OF NEW YORK )
) ss.:
COUNTY OF ULSTER )
On this 30th day of April, 1998, before me personally came Xxxxxx X. Xxxx,
to me known, who being by me duly sworn, did depose and say that he is
President/CEO of The WellCare Management Group, Inc., the corporation described
in and which executed the foregoing instrument; that he is duly authorized to
execute said instrument on behalf of said corporation, and that he executed said
instrument pursuant to that authority.
/s/ Xxxx X. Xxxxx
------------------------------
Notary Public
XXXX X. XXXXX
Notary Public, State of New York
Reg. No. 5022167
Qualified in Dutchess County
Commission Expires Janauury 3, 2000
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