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EXHIBIT 10.16
XXXXX XXXXXX EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of the 11th
day of August, 1998 by and between CONTINUCARE CORPORATION, a Florida
corporation (the "Company") and Xxxxx Xxxxxx (the "Employee").
RECITALS
A. The Board of Directors of the Company (the "Board") believes
that the Employee can contribute to the growth and success of
the Company, and desires to assure the Company of the
Employee's employment and to compensate him therefor.
B. The Board has determined that this Agreement will reinforce
and encourage the Employee's attention and dedication to the
Company.
C. The Employee is willing to make his services available to the
Company on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the parties agree as follow:
1. EMPLOYMENT
1.1 GENERAL. The Company hereby agrees to employ the Employee, and the
employee hereby agrees to serve the company on the terms and conditions
set forth herein.
1.2 DUTIES OF EMPLOYEE. During the term of this Agreement, the Employee
shall serve as Senior Vice President, Chief Financial Officer and shall
diligently perform all services as may be assigned to him by the
C.E.O., and shall exercise such power and authority as may from time to
time be delegated to him by the C.E.O. The Employee shall devote
substantially all of his business time and attention to the business
and affairs of the Company, render such services to the best of his
ability, and use his best efforts to promote the interests of the
Company.
2. TERM. Except as otherwise provided in Section 5 hereof, the term of this
Agreement shall commence on August 24th, 1998 and shall terminate at the end
of the Term ("Term"). The Term shall be a two year period commencing August
24th, 1998 and ending of August 23rd, 2000.
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3. COMPENSATION
3.1 BASE SALARY. The Employee shall receive a base salary at the annual
rate of One Hundred Sixty Thousand Dollars ($160,000) (the "Base
Salary") during the Term of this Agreement, with such Base Salary
payable in installments consistent with the Company's normal payroll
schedule, subject to applicable withholding and other taxes.
3.2 BONUS. The Employee shall receive a bonus (the "Bonus") equal to at
least 10% of the Base Salary, which amount shall be payable in equal
quarterly installments over the one-year period following the date
hereof. The Employee shall also be eligible to receive an additional
bonus in an amount determined by the majority vote of all members of
the Company's Compensation Committee, based upon the Company's
operating results, financial condition, prospects and intended
utilization of earnings, if any.
3.3 STOCK OPTION. The Employee shall receive a warrant of 62,500 shares of
the Company at a price of $5.125 per share. The warrant shall vest
equally over a two-year period at a rate of 50% a year.
3.4 CHANGE OF CONTROL. Upon a change of control in the Company, the
Employee shall be entitled to an acceleration of the remainder of the
Employee's Agreement up to a maximum of 1 year salary or the remainder
of the Employee's Agreement which ever is less and the automatic
vesting of the total warrant of 62,500 shares of the Company. For the
purposes of this Agreement a change of ownership of 50% or more of the
Company's outstanding shares shall be a change in control.
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS
4.1 OTHER REIMBURSABLE EXPENSES. During the Term of the Employee's
employment hereunder, the Company, upon the submission of proper
substantiation by the Employee, shall reimburse the Employee for all
other reasonable expenses actually and necessarily paid or incurred by
the Employee in the course of and pursuant to the business of the
Company, including annual Association dues and up to a maximum of
$5,000 (Five Thousand) for continuing education courses necessary to
maintain licensure and 2 weeks paid time off.
4.2 OTHER BENEFITS. The Employee and his immediate family shall be entitled
to participate in all medical and hospitalization, group life
insurance, and any and all other plans as are presently and hereinafter
provided by the Company to is executives. The Employee shall also be
entitled to two week first year, four weeks second year vacation in
accordance with the Company's prevailing policy for its executives,
with any additional vacation time to be determined by the C.E.O.
4.3 WORKING FACILITIES. The Company shall furnish the Employee with an
office, secretarial help and such other facilities and services
suitable to his position and adequate for the performance of his duties
hereunder.
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4.4 AUTOMOBILE AND PHONE ALLOWANCE. The Employee shall be entitled to an
automobile and phone allowance of $950 per month, which amount is
intended to compensate Employee for wear and tear and other expenses
incurred by Employee by reason of the use of Employee's automobile or
telephone for Company business from time to time.
5. TERMINATION
5.1 TERMINATION FOR CAUSE. The Company shall at all times have the right,
upon written notice to the Employee, to terminate the Employee's
employment hereunder for "Cause" (as hereinafter defined). For purposes
of the Agreement, the term "Cause" shall mean (I) the willful failure
or refusal of the employee to perform material duties or render
material services assigned to him from time to time by the C.E.O. or
the Board (except during reasonable vacation periods or sick leave),
(II) the indictment of the Employee for a felony, (III) the
association, directly or indirectly, of the Employee for his profit or
financial benefit, with any person, firm, partnership, association,
entity or corporation that competes with the Company in any material
way, excluding purchases of stock by the Employee not to exceed 5% of
any publicly held company which so competes, (IV) the disclosing or
using of any material trade secret or confidential information of the
Company at any time by the Employee, except as required in connection
with his duties to the Company, of (V) the intentional breach by the
Employee of his fiduciary duty to the Company as defined by applicable
law. Upon any termination pursuant to his Section 5.1, the Employee
shall be entitled to be paid his Base Salary to the date of termination
and the amount, if any, of the unpaid Bonus in accordance with Section
3.2 hereof, and the Company shall have no further liability hereunder
(other than for reimbursement for reasonable business expenses incurred
prior to the date of termination).
5.2 DISABILITY. The Company shall at all times have the right, upon written
notice to the Employee, to terminate the Employee's employment
hereunder if the Employee shall, as the result of mental or physical
incapacity, illness or disability, become unable to perform his duties
hereunder for in excess of ninety (90) days in any 12-month so long as
the Company is in compliance with applicable law. Upon any termination
pursuant to this Section 5.2, the Company shall pay to the Employee any
unpaid amounts of his Base Salary accrued through the effective date of
termination and the amount, if any, of the unpaid Bonus in accordance
with Section 3.2 hereof, and an additional amount to be determined by
the majority vote of the Board of Directors in their discretion, the
Company shall have no further liability hereunder (other than for
reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however, to the provisions of Section
4.1).
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5.3 DEATH. In the event of the death of the Employee during the term of his
employment hereunder, the Company shall pay to the estate of the
deceased Employee any unpaid amounts of his Base Salary accrued through
the effective date of his death and the amount, if any, of the unpaid
Bonus in accordance with Section 3.2 hereof, and the Company shall have
no further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the death, subject,
however, to the provisions of Section 4.1). In the event of the death
of the Employee on Company business, the Board of Directors may
consider payment of an amount determined by a majority of the Board to
the estate of the Employee.
5.4 TERMINATION WITHOUT CAUSE. At any time the Company shall have the right
to terminate the Employee's employment hereunder by written notice to
the Employee; provided, however, that the Company shall continue to pay
the Employee the Base Salary for the period of six (6) months of the
Agreement per Section 2 following the effective date of termination
specified in such notice in accordance with the Company's normal
payroll policies and the amount, if any, of the unpaid Bonus in
accordance with Section 3.2 hereof. The Company shall provide
outplacement services with Right Management Consultants for the 6
months period at a cost not to exceed $12,000 (Twelve Thousand). In
addition, the stock option as described in 3.4 shall vest immediately
and in the full amount of 62,500 shares. The Company shall have no
further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination,
subject, however, to the provisions of Section 4.1).
5.5 RESIGNATION BY EMPLOYEE. The Employee shall at all times have the
right, upon 180 days' written notice to the Company, to terminate the
Employee's employment hereunder. Upon any termination pursuant to this
Section 5.5, the Employee shall be entitled to be paid his Base Salary
to the date of termination and the amount, if any, of the unpaid Bonus
in accordance with Section 3.2 hereof, and the Company shall have no
further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination,
subject, however, to the provisions of Section 4.1).
6. RESTRICTIVE COVENANTS
6.1 NON-COMPETITION. While employed by the Company and for a period of
ninety (90) days following the termination of the Employee's employment
hereunder (other than a termination without cause, as contemplated by
Section 5.4 hereof), the Employee shall not, directly or indirectly,
engage in or have any interest in any sole proprietorship, partnership,
corporation, or business or any other person or entity (whether as an
employee, officer, director, partner, agent, security holder, creditor,
consultant, or otherwise) that directly or indirectly engages primarily
in the outpatient healthcare business (the "Business") in competition
with the Company and/or its "affiliates" (as such term is defined in
rule 12b-2 as promulgated under the Securities Exchange Act of 1934, as
amended) or otherwise similar to the business of the Company and its
affiliates in Florida or in any other state in which the Company and/or
its affiliates are conducting business at the time of termination or
separation.
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6.2 NON-DISCLOSURE. Employee shall not divulge, communicate, use to the
detriment of the Company or any affiliate or for the benefit of any
other person or persons, or misuse in any way, any confidential
information pertaining to the business of the Company or any affiliate.
Any confidential information or data now known or hereafter acquired by
the Employee with respect to the business of the Company or any
affiliate (which shall include but not be limited to information
concerning the Company's or any affiliates' financial condition,
prospects, patients, sources, and methods of doing business) shall be
deemed a valuable, special and unique asset of the Company that is
received by the Employee in confidence and as a fiduciary, and the
Employee shall remain a fiduciary to the Company with respect to all
such information except for information which is in the public domain
and any and all information or documents requested by legal process,
that is, by subpoena, with the Employee to provide sufficient
notification to the Company upon receipt of such legal process.
6.3 NON-SOLICITATION OF EMPLOYEES AND CUSTOMERS. While employed by the
Company, and for a period of three years (except that the period with
respect to the prohibition in Clause (II) hereof shall be one year if
Employee's employment is terminated pursuant to Section 5.4 hereof)
following the date his employment is terminated hereunder, the Employee
shall not, directly or indirectly, for himself or for any other person,
firm, corporation, partnership, association or other entity, (I)
attempt to employ or enter into any contractual agreement with any
employee or former employee of the Company, unless such employee has
not been employed by the Company for a period in excess of six months,
and/or (II) call on or solicit any of the actual or targeted patients
of the Company, nor shall the Employee make known the names and
addresses of such patients.
6.4 BOOK AND RECORDS. All books, records, and accounts relating in any
manner to the customers or clients of the Company, whether prepared by
the Employee or otherwise coming into the Employee's possession, shall
be the exclusive property of the Company and shall be returned
immediately to the Company on termination of the Employee's employment
hereunder or on the Company's request at any time.
7. INJUNCTION. It is recognized and hereby acknowledged by the parties hereto
that a breach by the Employee of any of the covenants contained in Section 6
of this Agreement will cause irreparable harm and damage to the Company, the
monetary amount of which may be virtually impossible to ascertain. As a
result, the Employee recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the convenants
contained in Section 6 of this Agreement by the Employee or any of his
affiliates, associates, partners or agents, either directly or indirectly,
and that such right to injunction shall be cumulative and in addition to
whatever other remedies the Company may possess.
8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to any
conflict of law, rule or principle that would give effect to the laws of
another jurisdiction.
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9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and, upon its
effectiveness, shall supersede all prior agreements, understandings, and
arrangements, both oral and written, between the Employee and the Company
(or any of its affiliates, including, without limitation, Continucare
Corporation) with respect to such subject matter. This Agreement may not be
modified in any way unless by a written instrument signed by both the
Company and the Employee.
10. NOTICES. Any notice required or permitted to be given hereunder shall be
deemed given when delivered by hand or when deposited in the United States
mail, by registered or certified mail, return receipt requested, postage
prepaid, to the parties hereto at their respective address set forth in the
Purchase Agreement or to such other address as either party hereto may from
time to time give notice of to the other.
11. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit of and
binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns, including without limitation any successor to the Company, whether
by merger, consolidation, sales of stock, sales of assets or otherwise;
provided, however, that the Employee shall not delegate his employment
obligations hereunder, or any portion thereof, to any other person.
12. SEVERABILITY. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect
the enforceability of the remaining portions of this Agreement or any part
thereof, all of which are inserted conditionally on their being valid in law
and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid,
this Agreement shall be construed as if such invalid word or words, phrase
or phrases, sentence or sentences, clause or clauses, or sections or
sections has not been inserted. If such invalidity is caused by length of
time or size of area, or both, the otherwise invalid provision will be
considered to be reduced to a period or area which would cure such
invalidity.
13. WAIVERS. The waiver by either party hereto of a breach or violation of any
term or provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation.
14. DAMAGES. Nothing contained herein shall be construed to prevent the Company
or the Employee from seeking and recovering from the other damages sustained
by either or both of them as a result of its or his breach of any term or
provision of this Agreement. In the event that either party hereto brings
suit for the collection of any damages resulting from, or for the injunction
of any action constituting a breach of any of the terms or provisions of
this Agreement, then the party found to be at fault shall pay all reasonable
court costs and attorney's fees of the other.
15. SECTION HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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16. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this Agreement
is intended, nor shall be construed to confer upon or give any person other
than the Company, the Employee and their respective heirs, personal
representatives, legal representatives, successors and assigns, as
applicable, any rights or remedies under or by reason of this Agreement.
IN THE WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
CONTINUCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
C.E.O.
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
