EXHIBIT 10.20
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
dated as of June 28, 2004 among WellCare Group, Inc. a Delaware corporation
("WellCare"), Comprehensive Health Management, Inc., a Florida corporation that
is, as of the date hereof, under common control with WellCare (the "Company"),
and Xxxx X. Xxxxx (the "Executive").
WHEREAS, the Executive, the Company and WellCare Health Plans, Inc.,
a Delaware corporation formerly known as WellCare Acquisition Company, are
parties to that certain Employment Agreement, dated as of July 31, 2002 (the
"Original Employment Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Original
Employment Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
representations contained herein, and intending to be legally bound, the parties
hereto agree as follows:
1. Term.
The Company will employ the Executive, and the Executive will serve
the Company, under the terms of this Agreement for an initial term (the "Term")
of three years, commencing on July 31, 2002 (the "Effective Date"). Effective as
of the expiration of such initial three-year Term and as of each third
anniversary date thereof, the Term shall be extended for an additional
three-year period unless, not later than three months prior to such respective
date, either party hereto shall have given notice to the other that the Term
shall not be so extended (a "Notice of Non-Renewal"). Notwithstanding the
foregoing, the Executive's employment by the Company may be terminated prior to
the completion of the then Term, as provided in Section 4 hereof. The period
beginning on the Effective Date and ending on the first to occur of (i) the last
day of the Term and (ii) the date the Executive ceases to be a full-time
employee of the Company for any reason shall be referred to herein as the
"Employment Period." In the event a Notice of Non-Renewal is delivered by either
party as provided above, then, as of the end of the Term, unless the Executive
is no longer an employee of the Company as of such time, the Executive shall
become an at-will employee of the Company.
2. Employment.
(a) Positions and Reporting. The Company hereby employs the
Executive for the Employment Period as its Chief Executive Officer on the terms
and conditions set forth in this Agreement. During the Employment Period, (i)
the Executive shall also be Chief Executive Officer of WellCare and (ii) so long
as Holdings owns all of WellCare's issued and outstanding shares of common
stock, the Executive shall also be Chief Executive Officer of WellCare Holdings,
LLC, which as of the date hereof is the parent entity of WellCare ("Holdings").
During the Employment Period, the Executive shall report directly to and shall
be subject to the authority of the Board of Directors of Holdings, or, if
Holdings ceases to own all of
WellCare's issued and outstanding shares of common stock, then to the Board of
Directors of WellCare (in either case, the "Board").
(b) Authority and Duties.
(i) The Executive shall exercise such authority,
perform such executive duties and functions and discharge such responsibilities
as are reasonably associated with and required by the Executive's position as
Chief Executive Officer of WellCare and the Company, commensurate with the
authority vested in the Executive pursuant to this Agreement and consistent with
the By-Laws of WellCare and the Company. During the Employment Period, the
Executive shall devote his full business time, skill and efforts to the business
and affairs of Holdings, WellCare and their respective subsidiaries (including
the Company) whether currently existing or hereafter acquired or formed
(collectively, the "WellCare Companies"). Executive shall perform his duties and
responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner. Notwithstanding the foregoing, subject to
Section 8 hereof, the Executive may (i) make and manage personal passive
business investments of his choice and serve in any director or similar type
capacity with up to three civic, educational or charitable organizations, or any
trade association, without seeking or obtaining approval by the Board; (ii)
continue his ownership of (but not the management of) Northeast Mobile Systems
LLC ("NMS") and Medical Technology Management, LLC ("MTM"), provided such
activities described in (i) and (ii) above do not materially interfere or
conflict with the performance of his duties hereunder, and (iii) with the
approval of the Board, serve on the boards of directors of other corporations.
The Executive hereby agrees that he shall not use any WellCare Company, any
business relationship of any WellCare Company, or his position with any WellCare
Company for the benefit of NMS or MTM.
(ii) The Executive shall serve as a member of the Board
during the Employment Period.
(c) Place of Performance. The Executive's primary work
locations during the Employment Period shall be the Company's principal service
areas of the state of Connecticut and the metropolitan areas of Tampa, Florida
and New York City, New York; provided, however, that the Executive shall be
expected to undertake other reasonable travel on WellCare Companies' business.
3. Compensation and Benefits.
(a) Salary. During the Employment Period, the Company shall
pay to the Executive, as compensation for the performance of his duties and
obligations under this Agreement, a base salary at the rate of $300,000 per
annum, payable in arrears not less frequently than monthly in accordance with
the normal payroll practices of the Company (the "Base Salary"). Such Base
Salary shall be subject to review each calendar year for possible increase by
the Board in its sole discretion, but shall in no event be decreased from its
then-existing level during the Employment Period.
(b) Annual Bonus. The Executive shall earn bonus amounts for
each fiscal year of the WellCare Companies (or part thereof) during the
Employment Period, payable
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in the form of cash, to be paid to the Executive within 10 days after the Board
has received and approved the WellCare Companies' audited financial statements
for such fiscal year. The determination of the bonus amount for any such fiscal
year (or part thereof) shall be based upon the satisfaction of performance
criteria for such fiscal year that will be established by the compensation
committee of the Board (the "Compensation Committee") (or the full Board, if no
such committee shall exist) in its discretion and upon consultation with the
Executive by no later than 30 days after the Board has approved the WellCare
Companies' budget for such fiscal year. Such performance criteria will include
corporate performance goals consistent with the WellCare Companies' business
plan and budget for such fiscal year, as well as individual objectives for the
Executive's performance that are separate from, but are consistent with, such
WellCare Companies' business plan and budget. The final determinations as to the
actual corporate and individual performance against the pre-established goals
and objectives, and the amounts of the bonus payout in relationship to such
performance, shall be made by the Compensation Committee (or Board, as
applicable) in its sole discretion.
(c) Insurance Policies. The Company shall purchase, for up
to an annual premium amount of $5,000 and maintain in force during the
Employment Period, life and disability insurance on the Executive, the
beneficiary of which shall be designated by the Executive (the "Executive
Policies"). In the event that the Company cancels the Executive Policies
(whether or not in breach of this Agreement), the Executive shall have the
option to continue them in force at his own expense. Subject to insurability,
the Executive Policies shall be assigned to the Executive upon the termination
of Executive's employment with the Company. The Company (or any of the other
WellCare Companies) may also purchase "key-person" life insurance policies on
the Executive's life in such amounts and of such types as are determined by the
Board. The Executive shall cooperate fully with the Company in obtaining such
insurance and shall submit to such physical examinations and provide such
information as is reasonably required to obtain and maintain such policies.
Neither the Executive nor his successor-in-interest or estate shall have any
interest in any such key-person life insurance policies so obtained.
(d) Other Benefits. During the Employment Period, the
Executive shall receive such other pension, health insurance, holiday, vacation
and sick pay benefits and other employee benefits (including participation in
any deferred compensation or other incentive plans) which the Company extends,
as a matter of policy, to its executive employees. Without limiting the
generality of the foregoing, the Executive shall be entitled to four weeks
vacation during each full calendar year of the Employment Period (which vacation
benefits shall be appropriately pro rated for any partial calendar year during
the Employment Period), which vacation shall be scheduled in the Executive's
discretion, subject to and taking into account the business exigencies of
WellCare Companies
(e) Business Expenses. The Company shall promptly reimburse
the Executive for all documented reasonable business and travel expenses
incurred by the Executive in the performance of his duties hereunder in
accordance with the Company's standard policies and practices.
(f) Travel Expenses; Housing and Automobile Allowance.
Without limiting the generality of Section 3(e), the Company shall reimburse the
Executive for all
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reasonable expenses incurred by him in connection with his travel during the
Employment Period between the Company's principal service areas of Florida and
New York. In addition, during the Employment Period, the Company shall pay
directly up to $4,000 per month of the cost of Executive's living expenses in
New York, New York.
4. Termination of Employment Prior to the Expiration of the Term.
Executive's employment with the Company may be terminated prior to
the expiration of the Term in any of the following ways:
(a) Termination Upon Death or Disability. The Employment
Period shall end upon the death of the Executive. In the event of the Disability
(as hereinafter defined) of the Executive during the Term, the Company shall
have the right to terminate the Executive's employment with the Company by
giving 30-days' advance written notice to that effect to the Executive. For
purposes of this Agreement, the term "Disability" means any physical or mental
disability or incapacity that can be expected to result in death or that has
rendered the Executive unable to effectively carry out his duties and
obligations to the WellCare Companies or unable to effectively and actively
participate in the management of the WellCare Companies for a period of 90
consecutive days or for shorter periods aggregating to 120 days (whether or not
consecutive) during any consecutive 12 months of the Employment Period.
(b) Termination for Cause. Prior to the expiration of the
Term, the Company may terminate the Executive's employment with the Company for
Cause (as hereinafter defined). For purposes of this Agreement and subject to
the Executive's opportunity to cure as provided in Section 4(e) hereof, the
Company shall have "Cause" to terminate the Executive's employment hereunder if
the Executive shall commit any of the following:
(i) any act or omission, other than as a result of the
Executive's Disability, which shall represent a breach in any material respect
of any of the terms of this Agreement;
(ii) bad faith in the performance of the Executive's
duties, consisting of willful acts or omissions, other than as a result of the
Executive's Disability, to the material detriment of any WellCare Company; or
(iii) any conviction or pleading of guilty to a crime
that constitutes a felony or that involves financial misconduct under the laws
of the United States or any political subdivision thereof;
provided, however, that any purported termination by the Company of the
Executive's employment hereunder for Cause shall only be effective upon the
affirmative vote of directors constituting at least two-thirds of the then
aggregate number of votes of the current members of the full Board, after a duly
constituted meeting of the Board held to consider such matter, with reasonable
advance notice to the Executive that such Board meeting is to occur, and with an
opportunity provided to the Executive to be represented at such Board meeting
with counsel.
(c) Without Cause. Prior to the expiration of the Term, the
Company, effective upon the date specified in the notice of such termination,
may terminate the Executive's
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employment with the Company for any reason whatsoever. Prior to the expiration
of the Term, the termination by the Company of the Executive's employment with
the Company for any reason other than Cause, Disability or death shall
constitute a termination "Without Cause" hereunder.
(d) Termination for Good Reason. The Executive shall have
the right at any time to terminate the Executive's employment with the Company
for any reason. Prior to the expiration of the Term, the termination by the
Executive of the Executive's employment with the Company for any reason other
than for Good Reason (as hereinafter defined) or death shall constitute a
"Voluntary Resignation by Executive" hereunder. For purposes of this Agreement
and subject to the Company's opportunity to cure as provided in Section 4(e)
hereof, the Executive shall have "Good Reason" to terminate employment hereunder
if such termination shall be the result of:
(i) a material diminution during the Employment Period
in the Executive's authority, duties or responsibilities as set forth in Section
2 hereof;
(ii) the removal of the Executive from the Board, other
than pursuant to his removal from the Board for cause pursuant to a vote of the
equityholders of Holdings or WellCare, as the case may be, or due to Executive's
resignation from the Board;
(iii) a breach by the Company of any of the compensation
and benefits provisions set forth in Section 3 hereof;
(iv) a material breach by the Company of any material
terms of this Agreement;
(v) a change in the Executive's office location to a
point more than 50 miles from the Executive's offices in Tampa, Florida or New
York, New York.
(e) Notice and Opportunity to Cure. Notwithstanding the
foregoing, prior to the expiration of the Term, it shall be a condition
precedent to the Company's right to terminate the Executive's employment for
Cause and the Executive's right to terminate employment for Good Reason that (i)
the party seeking the termination shall first have given the other party written
notice stating with specificity the reason for the termination ("breach") and
(ii) if such breach is susceptible of cure or remedy, a period of 30 days from
and after the giving of such notice shall have elapsed without the breaching
party having substantially cured or remedied such breach during such 30-day
period, unless such breach cannot be cured or remedied within 30 days, in which
case the period for remedy or cure shall be extended for a reasonable time (not
to exceed an additional 30 days) provided the breaching party has made and
continues to make a diligent effort to effect such remedy or cure.
5. Consequences of Termination of Employment Prior to the
Expiration of the Term.
(a) Termination Without Cause or for Good Reason. In the
event of the termination of the Executive's employment with the Company, either
by the Company Without Cause or by the Executive for Good Reason, in each case,
prior to the expiration of the
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Term, (i) the Company shall continue to pay the Executive his Base Salary for
twelve months following the effective date of such termination, (ii) on the date
twelve months after the effective date of such termination, the Company shall
pay the Executive an amount equal to Executive's target bonus (as determined by
the Compensation Committee of the Company's Board of Directors) for the
Company's fiscal year in which such termination occurs and (iii) the Company
shall continue for 12 months (the "Separation Period"), at the Company's
expense, coverage for the Executive (and his beneficiaries) under the group
medical care, disability and life insurance benefit plans or arrangements in
which he is participating at the time of termination, including, without
limitation, the Executive Polices; provided, however, that if such coverage is
precluded by the terms of the Company's benefit or insurance policies, the
Company shall make a cash payment to the Executive in an amount sufficient to
allow the Executive to obtain comparable benefits for such period; and provided,
further, that the Company's obligation to provide such coverage shall be
terminated if the Executive obtains equivalent substitute coverage from another
employer at any time during the Separation Period.
(b) Termination Upon Disability. In the event of the
termination of the Executive's employment hereunder by the Company on account of
Disability prior to the expiration of the Term, (i) the Company shall continue
to pay the Executive his Base Salary for the shorter of (x) three months
following the effective date of such termination and (y) the then remainder of
the Term and (ii) the Company shall continue for three months, at the Company's
expense, coverage for the Executive (and his beneficiaries) under the group
medical care, disability and life insurance benefit plans or arrangements in
which he is participating at the time of termination, including, without
limitation, the Executive Polices; provided, however, that if such coverage is
precluded by the terms of the Company's benefit or insurance policies, the
Company shall make a cash payment to the Executive in an amount sufficient to
allow the Executive to obtain comparable benefits for such period; and provided,
further, that the Company's obligation to provide such coverage shall be
terminated if the Executive obtains equivalent substitute coverage from another
employer at any time during such continuation period.
(c) Termination Upon Death. In the event of termination of
the Executive's employment with the Company prior to the expiration of the Term
on account of the Executive's death, the Company shall pay to the Executive's
heirs, estate or personal representatives under law, as applicable, a lump sum
cash payment equal to 3 months of the Executive's Base Salary. The Executive's
beneficiary or estate shall not be required to remit to the Company any payments
received pursuant to any Executive Policies.
(d) Voluntary Resignation by Executive or Termination With
Cause. In the event of the termination of the Executive's employment hereunder
by the Company for Cause or by Voluntary Resignation by Executive, in each case,
prior to the expiration of the Term, the Company shall have no responsibility or
obligation to make any payments or provided any benefits to the Executive except
to the extent provided in Section 5(e) hereof.
(e) Accrued Rights. Notwithstanding the foregoing provisions
of this Section 5, in the event of termination of the Executive's employment
with the Company for any reason, the Company shall pay to or on behalf of the
Executive all unpaid Base Salary accrued through the effective date of
termination and a lump sum cash payment for all unused vacation
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accrued by the Executive through the effective date of termination, and the
Company shall provide to or on behalf of the Executive all payments and other
benefits accrued for the Executive through the effective date of termination
under all equity arrangements, benefit plans, programs and arrangements in which
the Executive participated during the Employment Period.
(f) No Other Payment Obligations. Except as expressly
provided in Sections 5(a) through 5(e) above or as required by law, upon the
date the Executive ceases to be employed by the Company (i) all of Executive's
rights to salary, bonus and benefits hereunder shall cease and (ii) no other
severance or other compensation, or benefits shall be payable by any of the
WellCare Companies to Executive.
5A. Change in Control.
Notwithstanding anything to the contrary in this Agreement, if a
"Change in Control" (as defined below) occurs during the term of this Agreement,
and if within two years following such Change in Control either (1) the Company
terminates Executive's employment Without Cause or (2) Executive terminates his
employment for Good Reason, such termination shall be treated as a termination
Without Cause or for Good Reason in accordance with Section 5(a) hereof, except
that the Company shall continue to pay the Executive his Base Salary for 24
months following the effective date of such termination.
For purposes of this Agreement, the term "Change of Control" means:
(i) The acquisition by any "person" or "group" (as defined in or
pursuant to Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (other than (A) Holdings, WellCare or any
subsidiary thereof, (B) any employee benefit plan of Holdings, WellCare or any
subsidiary thereof, or (C) Xxxxx Private Equity Investors LP and/or its
affiliates), directly or indirectly, as "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of securities of WellCare or Holdings representing
more than fifty percent (50%) of either the then outstanding shares or the
combined voting power of the then outstanding securities of such entity;
(ii) Either a majority of the directors of WellCare elected at
WellCare's annual stockholders meeting shall have been nominated for election
other than by or at the direction of the "incumbent directors" of WellCare, or
the "incumbent directors" shall cease to constitute a majority of the directors
of WellCare. The term "incumbent director" shall mean any director who was a
director of WellCare on the date hereof and any individual who becomes a
director of WellCare subsequent to the date hereof and who is elected or
nominated by or at the direction of at least two-thirds (2/3) of the then
incumbent directors;
(iii) The stockholders of WellCare or Holdings approve (A) a merger,
consolidation or other business combination of such entity with any other
"person" or "group" (as defined in or pursuant to Sections 13(d) and 14(d) of
the Exchange Act) or affiliate thereof, other than (1) a merger of Holdings with
and into WellCare or (2) a merger or consolidation that would result in the
outstanding common stock of WellCare or Holdings, as applicable, immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into common stock of the surviving entity or a parent or
affiliate thereof) more than
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fifty percent (50%) of the outstanding common stock of WellCare or Holdings, as
applicable, or such surviving entity or a parent or affiliate thereof
outstanding immediately after such merger, consolidation or other business
combination, or (B) a plan of complete liquidation of WellCare or Holdings or an
agreement for the sale or disposition by WellCare or Holdings of all or
substantially all of such entity's assets (including if accomplished pursuant to
the sale of shares of equity securities (including by any consolidation, merger
or reorganization) of one or more subsidiaries of WellCare or Holdings which
collectively constitute all or substantially all of such entity's assets), other
than a merger of Holdings with and into WellCare; or
(iv) Any other event or circumstance which is not covered by the
foregoing subsections but which the Board determines to affect control of
WellCare or Holdings and with respect to which the Board of Directors adopts a
resolution that the event or circumstance constitutes a Change of Control for
purposes of this Agreement.
5B. Parachute Payments.
(a) In the event that any payment or benefit received or to
be received by the Executive pursuant to the terms of this Agreement (the
"Payments") would be subject to the excise tax imposed by Section 4999 of the
Code (the "Excise Tax"), the Company shall pay to the Executive an additional
amount (the "Gross-Up Payment") such that the net amount of Payments retained by
the Executive shall be equal the amount the Executive would have retained if
none of such Payments were subject to the Excise Tax. In particular, the Company
will timely pay to the Executive an amount equal to the Excise Tax on the
Payments, any interest, penalties or additions to tax payable by the Executive
by reason of the Executive's filing income tax returns and making tax payments
in a manner consistent with an opinion of tax counsel selected by the Company
and reasonably acceptable to the Executive ("Tax Counsel"), and any federal,
state and local income tax and Excise Tax upon the payments by the Company to
the Executive provided for by this Section 5B(a). Notwithstanding the foregoing
provisions of this Section 5B(a), in the event the amount of Payments subject to
the Excise Tax exceeds the product ("Parachute Payment Limit") of 2.99 and the
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 the Base Salary, the
Executive shall be treated as having waived such rights with respect to Payments
designated by the Executive to the extent required such that the aggregate
amount of Payments subject to the Excise Tax is less than the Parachute Payment
Limit. "Code" refers to the Internal Revenue Code of 1986, as amended.
(b) The Company shall obtain an opinion of Tax Counsel that
initially determines whether any of the Payments will be subject to the Excise
Tax and the amounts of such Excise Tax, which shall serve as the basis for
reporting Excise Taxes and federal, state and local income taxes on Payments
hereunder. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income tax at the highest marginal
rates of federal income taxation applicable to individuals in the calendar year
in which the Gross-Up Payment is to be made and state and local income taxes at
the highest marginal rates of taxation applicable to individuals as are in
effect in the state and locality of the Executive's residence in the calendar
year in which the Gross-Up Payment is to be made, net of the maximum reduction
in federal income taxes that can be obtained from deduction of such
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state and local taxes, taking into account any limitations applicable to
individuals subject to federal income tax at the highest marginal rates.
(c) The Gross-Up Payments provided for in this Section 5B
shall be made as to each Payment upon the earlier of (i) the payment to the
Executive of any such Payment or (ii) the imposition upon the Executive or
payment by the Executive of any Excise Tax or any federal, state or local income
tax on any payment pursuant to this Section 5B.
(d) If it is established pursuant to a final determination
of a court or an Internal Revenue Service proceeding or the opinion of Tax
Counsel that the Excise Tax is less than the amount taken into account under
Section 5B hereof, the Executive shall repay to the Company within five days of
the Executive's receipt of notice of such final determination or opinion the
portion of the Gross-Up Payment attributable to such reduction (plus the portion
of the Gross-Up Payment attributable to the Excise Tax and federal, state and
local income tax imposed on the Gross-Up Payment being repaid by the Executive
if such repayment results in a reduction in Excise Tax or a federal, state and
local income tax deduction) plus any interest received by the Executive on the
amount of such repayment. If it is established pursuant to a final determination
of a court or an Internal Revenue Service proceeding or the opinion of Tax
Counsel that the Excise Tax exceeds the amount taken into account hereunder
(including by reason of any payment the existence or amount of which cannot be
determined at the time of the Gross-Up Payment), the Company shall make an
additional Gross-Up Payment in respect of such excess within five days of the
Company's receipt of notice of such final determination or opinion.
6. Confidentiality.
(a) The Executive acknowledges that, by reason of the
Executive's employment by the Company, the Executive will have access to
confidential information of the WellCare Companies ("Confidential Information").
The Executive acknowledges that such Confidential Information is a valuable and
unique asset of the WellCare Companies and covenants that, both during and after
the Employment Period, the Executive will not disclose any Confidential
Information to any Person (defined below) (except as the Executive's duties as
an employee or director of any of the WellCare Companies may require) without
the prior written authorization of the Board. The obligation of confidentiality
imposed by this Section 6 shall not apply to Confidential Information that
otherwise becomes known to the public through no act of the Executive in breach
of this Agreement or which is required to be disclosed by court order or
applicable law.
(b) 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 the
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
any WellCare Company that is collected by the Executive shall be delivered
promptly to such WellCare Company without request by it upon termination of the
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Executive's employment. For purposes of this Section 6(b), "Intellectual
Property" shall mean patents, copyrights, trademarks, trade dress, trade
secrets, other such rights, and any applications.
7. Inventions.
The Executive is hereby retained in a capacity such that the
Executive's responsibilities may include the making of technical and managerial
contributions of value to the WellCare Companies. The Executive hereby assigns
to the applicable WellCare Company all rights, title and interest in such
contributions and inventions made or conceived by the Executive alone or jointly
with others during the Employment Period which relate to the business of 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.
The Executive shall promptly and fully disclose all such contributions and
inventions to the Company and assist the Company 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 said
contributions and inventions will 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 not have any right, title or interest in any work product or
copyrightable work developed outside of work hours and without the use of any
WellCare Company's resources that does not relate to the business of any
WellCare Company and does not result from any work performed by the Executive
for any WellCare Company.
8. Unfair Competition.
(a) Scope of Covenant. The Executive agrees that during the
Employment Period, and, subject to Section 8(e) hereof, for the one-year period
beginning on the last day of the Employment Period, the Executive shall not,
directly or indirectly, for himself or on behalf of or in conjunction with any
other person, company, partnership, business, group, venturer or other entity
(each, a "Person"), without the prior written consent of the Board:
(i) engage as an officer, director, shareholder,
owner, partner, joint venturer, or in any managerial capacity, whether as an
employee, independent contractor, consultant or advisor (paid or unpaid), or as
a sales representative, or otherwise participate, in each case, in any business
that sells, markets, or provides any benefits or services, that are in direct
competition with the benefits or services provided by any WellCare Company
within any of the States of Florida, Connecticut, New York or any other state
that any WellCare Company is doing business (the "Territory") at the time
Executive ceases to be employed by the Company;
(ii) 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 such WellCare Company for a period in excess of six months;
provided, however, that the provisions of this clause (ii) shall not apply to
any member of the Executive's immediate family;
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(iii) call upon any Person who at that time is or, at
any time after the date one year prior to the date Executive ceases to be
employed by the Company, has been a provider, customer or agent of any WellCare
Company for the purpose of soliciting or selling benefits or services in
competition with any WellCare Company within the Territory; or
(iv) 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 8(a) shall be construed to
preclude the Executive from making an investment in the securities of any
business enterprise whether or not engaged in competition with a 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. If at any time during the one year period
beginning on the last day of the Employment Period, Executive desires to become
an employee of a division of a competitor of the WellCare Companies which
division is itself not engaged in competition with the WellCare Companies, then
Executive may request that the Company grant him a waiver of the provisions of
Section 8(a)(i) above with respect to his employment by such division so that
Executive may become an employee of such division without violating the
provisions of Section 8(a)(i) above, which waiver the Company (with the prior
approval of the Board) may grant (but shall be under no obligation to grant) to
Executive in its sole discretion.
(b) Reasonableness. It is agreed by the parties that the
foregoing covenants in this Section 8 impose a reasonable restraint on the
Executive in light of the activities and business of the WellCare Companies on
the date of the execution of this Agreement and the current plans of the
WellCare Companies. The Executive acknowledges that the covenants in this
Section 8 shall not prevent the Executive from earning a livelihood upon the
termination of employment hereunder, but merely prevents unfair competition with
the WellCare Companies for a limited period of time.
(c) Severability. The covenants in this Section 8 are
severable and separate, and the unenforceability of any specific covenant shall
not affect the provisions of any other covenant. In the event any court of
competent jurisdiction shall determine that the scope, time or territorial
restrictions set forth herein are unreasonable, then it is the intention of the
parties that such restrictions be enforced to the fullest extent that such court
deems reasonable, and this Agreement shall thereby be reformed.
(d) Enforcement by the Company not Limited. All of the
covenants in this Section 8 shall be construed as an agreement independent of
any other provision in this Agreement, and the existence of any claim or cause
of action of the Executive against any WellCare Company, whether predicated in
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company or WellCare of such covenants.
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(e) Delivery of a Notice of Non-Renewal by the Company.
Notwithstanding any other provision contained herein, if the Employment Period
ends as a result of the delivery of a Notice of Non-Renewal to the Executive by
the Company, then the provisions of clause (i) of Section 8(a) hereof shall not
apply to the Executive during the one-year period beginning on the last day of
the Employment Period unless the Company, in its sole discretion, elects, by
delivery of a written notice (a "Non-Compete Extension Notice") to the Executive
by no later than the last day of the Employment Period, to keep such provisions
of clause (i) of Section 8(a) hereof in effect for such one-year period, in
which case, as a result of the Company's valid delivery of such a Non-Compete
Extension Notice to the Executive (and under no other circumstances), the
Company shall be obligated to pay to Executive his Base Salary during such
one-year period.
9. Breach of Restrictive Covenants.
The parties agree that a breach or violation of Sections 6, 7 or 8
hereof will result in immediate and irreparable injury and harm to the innocent
party, and that such innocent party shall have, in addition to any and all
remedies of law and other consequences under this Agreement, the right to seek
an injunction, specific performance or other equitable relief to prevent the
violation of the obligations hereunder.
10. Notices.
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, addressed as follows:
(a) If to WellCare or the Company:
WellCare Health Plans, Inc.
0000 Xxxxx Xxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Corporate Secretary
Fax: (000) 000-0000
With a copy, which shall not constitute notice, to:
Xxxxx Private Equity Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Fax: (000) 000-0000
and
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Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: W. Xxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
(b) If to the Executive:
at the Executive's last address or telecopy
number on the records of the Company
or to such other respective addresses as the parties hereto shall designate to
the other by like notice, provided that notice of a change of address shall be
effective only upon receipt thereof.
11. Non-Assignment; Successors.
No party hereto may assign any rights or delegate any duties under
this Agreement without the prior written consent of the other parties hereto;
provided, however, that: (i) this Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company and WellCare; and (ii)
this Agreement shall inure to the benefit of and be binding upon the heirs,
assigns or designees of the Executive to the extent of any payments due to them
hereunder. As used in this Agreement, the term "Company" shall be deemed to
refer to any such successor or assign of the Company referred to in the
preceding sentence.
12. Withholding of Taxes.
All payments required to be made by the Company to the Executive
under this Agreement shall be subject to the withholding of such amounts, if
any, relating to tax, and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation.
13. Payments; Mitigation.
All amounts payable by the Company to the Executive under this
Agreement shall be paid promptly on the dates required for such payment in this
Agreement without notice or demand. The Executive shall not be obligated to seek
other employment in mitigation of the amounts payable or the arrangements made
under any provision of this Agreement, and, except as specifically provided
herein, any such employment obtained by the Executive shall not reduce or affect
the amounts payable or the arrangements made under any provision of this
Agreement.
14. Director and Officer Insurance.
During the Employment Period, the Company shall use its best efforts
to obtain and maintain director's and officer's insurance for the Executive (in
such amounts as are appropriate for executives of businesses comparable to that
of WellCare) and shall give timely notice to the Executive of termination of any
such insurance policy.
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15. Indemnification.
The Company and WellCare shall indemnify the Executive, in his
capacity as an officer of the Company and WellCare, to fullest extent permitted
under the Company's and WellCare's respective By-Laws (not including any
amendments or additions hereafter that limit or narrow, but including any that
add to or broaden, the protection afforded to the Executive by those provisions)
and applicable law.
16. Waiver of Breach.
Any waiver of any breach of this Agreement shall not be construed to
be a continuing waiver or consent to any subsequent breach on the part either of
the Executive or of the Company or WellCare.
17. Severability.
To the extent any provision of this Agreement or portion thereof
shall be invalid or unenforceable, including, without limitation, Sections 6, 7
and 8 hereof, the specific provision found invalid or unenforceable shall be
considered deleted therefrom to the extent invalid and/or unenforceable and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect.
18. Governing Law.
This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of New York, without giving effect to the
choice of law provisions thereof.
19. Complete Agreement.
This Agreement constitutes the entire agreement by WellCare, the
Company and the Executive with respect to the subject matter hereof and
supersedes any and all prior agreements or understandings between the Executive
and the WellCare Companies with respect to the subject matter hereof, including
any employment agreements, arrangements or understandings existing or that arose
prior to the Effective Date, whether written or oral, including without
limitation the Original Employment Agreement. This Agreement may be amended or
modified only by a written instrument executed by the Executive, WellCare and
the Company (with the prior approval of the Board).
20. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Employment Agreement as of the date first written above.
WELLCARE:
WELLCARE GROUP, INC.
By: /s/ Xxxxxxxx Xxxxxxx
--------------------
Name:
Its:
COMPANY:
COMPREHENSIVE HEALTH MANAGEMENT, INC.
By: /s/ Xxxxxxxx Xxxxxxx
--------------------
Name:
Its:
EXECUTIVE:
/s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx
By its countersignature hereto, WellCare Health Plans, Inc., a
Delaware corporation formerly known as WellCare Acquisition Company, hereby
agrees to the amendment and restatement of the Original Employment Agreement as
set forth in the foregoing Amended and Restated Employment Agreement.
WELLCARE HEALTH PLANS, INC.
By: /s/ Xxxxxxxx Xxxxxxx
--------------------
Name:
Its:
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