Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of the 1st
day of October, 2001 by and between CONTINUCARE CORPORATION, a Florida
corporation (the "Company") and Xxxxx Xxxx (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 therefore.
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 her services available to the Company
on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the parties agree as follows:
1. EMPLOYMENT
1.1 GENERAL. The Company hereby agrees to employ the Employee, and
the employee hereby agrees to be employed by the Company on
the terms and conditions set forth herein.
1.2 DUTIES OF EMPLOYEE. During the terms of this Agreement, the
Employee shall serve as Chief Financial Officer and shall
diligently perform all services as may be assigned to her by
the C.E.O., and shall exercise such power and authority as may
from time to time be delegated to her by C.E.O. The Employee
shall devote substantially all of her business time and
attention to the business and affairs of the Company, render
such services to the best of her ability, and use her best
efforts to promote the interests of the Company.
2. TERM.
Except as otherwise provided in Section 5 hereof, the term of this
Agreement shall be one year commencing on October 1, 2001 and shall
automatically renew for one year periods unless otherwise terminated by
either party in accordance with this Agreement.
3. COMPENSATION
3.1 BASE SALARY. The Employee shall receive a base salary at the
annual rate of One Hundred Five Thousand Dollars ($125,000)
(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 also be eligible to receive a bonus
in an amount determined by the C.E.O. and Compensation
Committee of the Board of Directors of the Company.
3.3 STOCK OPTION. The Employee shall be eligible to receive annual
grants of options of the Company's stock in amounts and on
such terms as shall be determined by the C.E.O. and the
Compensation Committee of the Board of Directors.
3.4 CHANGE OF CONTROL. Upon a change of control in the Company,
the Employee shall be entitled to the automatic vesting of any
and all of Employee's stock options not yet vested. 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 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 reasonable expenses actually and necessarily
paid or incurred by the Employee in the course of and pursuant
to the business of the Company, including annual Association
dues and up to a maximum of Five Thousand Dollars ($5,000) for
continuing education courses necessary to maintain licensure.
4.2 BENEFITS. The Employee and her immediate family shall be
entitled to participate in all medical and hospitalization,
group life insurance, and any and all other plans as are
presently and hereinafter provided by the Company to its
executives. The Employee shall also be entitled to four (4)
weeks vacation per year in accordance with the Company's
prevailing policy.
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4.3 WORKING FACILITIES. The Company shall furnish the Employee
with an office, and such other facilities and services
suitable to his position and adequate for the performance of
his duties hereunder.
4.4 AUTOMOBILE AND PHONE ALLOWANCE. The Employee shall be entitled
to an automobile and phone allowance of $500 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 her from time to time by the C.E.O. or the Board
(except during reasonable vacation periods or sick leave),
(II) the indictment of the Employee for a felony, (III) the
association, directly or indirectly, of the Employee for 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 her duties to the Company, or (V) the
intentional breach by the Employee of this fiduciary duty to
the Company as defined by applicable law. Upon any termination
pursuant to this Section 5.1, the Employee shall be entitled
to be paid her Base Salary to the date of termination and the
amount, if any, of the unpaid Bonus in accordance with Section
3.2 hereof, and the Company shall have no further liability
hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the date of termination).
5.2 DISABILITY. The Company shall at all times have the right,
upon written notice to the Employee, to terminate the
Employee's employment hereunder if the Employee shall, as the
result of mental or physical incapacity, illness or
disability, become unable to perform her duties hereunder for
in excess of ninety (90) days in any 12 month so long as the
Company is in compliance with applicable law. Upon
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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).
5.3 DEATH. In the event of the death of the Employee during the
term of her employment hereunder, the Company shall pay to the
estate of the deceased Employee any unpaid amounts of her Base
Salary accrued through the effective date of her death and the
amount, if any, of the unpaid Bonus in accordance with Section
3.2 hereof, and the Company shall have no further liability
hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the death, subject,
however, to the provisions of Section 4.1). In the event of
the death of the Employee on Company business, the Board of
Directors may consider payment of an additional amount
determined by a majority of the Board to the estate of the
Employee.
5.4 TERMINATION WITHOUT CAUSE. At any time the Company shall have
the right to terminate the Employee's employment hereunder by
written notice to the Employee; provided, however, that the
Company shall continue to pay the Employee the Base Salary for
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. In addition, any unvested
stock options as described in Section 3.3 shall vest
immediately. The Company shall have no further liability
hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the date of termination,
subject, however, to the provisions of Section 4.1).
5.5 RESIGNATION BY EMPLOYEE. The Employee shall at all times have
the right, upon sixty (60) 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 her Base Salary to the date of
termination and the amount, if any, of the unpaid Bonus in
accordance with Section 3.2 hereof, and the Company shall have
no further liability hereunder (other than for reimbursement
for reasonable business expenses
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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.
6.2 NON-DICLOSURE. 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 date
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 one (1) year following the
date her employment is terminated hereunder, the Employee
shall not, directly or indirectly, for herself or for any
other person, firm, corporation, partnership, association or
other entity, (I) attempt to employ or enter into an
contractual agreement with any employee or
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former employee of the Company, unless such employee has not
been employed by the Company for a period in excess of six (6)
months, and/or (II) call on or solicit any of the actual or
targeted patients of the Company, nor shall the Employee make
known the names and addresses of such patients.
6.4 BOOK AND RECORDS. All books, records, and accounts relating in
any manner to the customers or clients of the Company, whether
prepared by the Employee or otherwise coming into the
Employee's possession, shall be the exclusive property of the
Company and shall be returned immediately to the Company, on
termination of the Employee's employment hereunder or on the
Company's request at any time.
7. INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Employee of any of the covenants contained
in Section 6 of this Agreement will cause irreparable harm and damage
to the Company, the monetary amount of which may be virtually
impossible to ascertain. As a result, the Employee recognizes and
hereby acknowledges that the Company shall be entitled to an injunction
from any court of competent jurisdiction enjoining and restraining any
violation of any or all of the covenants contained in Section 6 of this
Agreement by the employee or any of his affiliates, associates,
partners or agents, either directly or indirectly, and that such right
to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
8. GOVERNING LAW. This Agreement shall, be governed by and construed in
accordance with a the laws of the State of Florida without regard to
any conflict of law, rule or principle that would give effect to the
laws of another jurisdiction.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof
and, upon its effectiveness, shall supersede all prior agreements,
understandings, and arrangements, both oral and written, between the
Employee and the Company (or any of its affiliates, including, without
limitation, Continucare Corporation) with a respect to such subject
matter. This Agreement may not be modified in any way unless by a
written instrument signed by both the Company and the Employee.
10. NOTICES. Any notice required or permitted to be given hereunder shall
be deemed given when delivered by hand or when deposited in the United
States mail, by registered or certified mail, return receipt requested,
postage prepaid, to the parties hereto at their respective address set
forth in this
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Employment 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 representative, 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 (1) or more of the words,
phrases, sentences, clauses or sections contained in this Agreement
shall not affect the enforceability of the remaining portions of this
Agreement or any part thereof, all of which are inserted conditionally
on their being valid in law and, in the event that any one (1) or more
of the words, phrases, sentences, clauses or sections contained in this
Agreement shall be construed as if such invalid word or words, phrase
or phrases, sentence or sentences, clause or clauses, or sections or
sections had not been inserted. If such invalidity is caused by length
of time or size of area, or both, the otherwise invalid provision will
be considered to be reduced to a period of area, which would cure such
invalidity.
13. WAIVERS. The waiver by either party hereto of a breach or violation of
any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
14. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Employee from seeking and recovering from the other
damages sustained by either or both of them as a result of its or 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.
16. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, nor shall be construed to confer upon or give
any person other than the Company, the Employee and their respective
heirs, personal representatives, legal representatives, successors and
assigns, as applicable, any rights or remedies under or by reason of
this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
CONTINUCARE CORPORATION XXXXX XXXX
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxx
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By: Xxxxxxx Xxxxx
Title: President/CEO
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