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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
20th day of October, 1997, by and between CONTINUCARE CORPORATION, a Florida
corporation, (hereinafter referred to as "the Company"), and Xxxxxx X.
Xxxxx, (hereinafter called "Executive").
1. EMPLOYMENT:
1.1 EMPLOYMENT AND TERM. The Company shall employ Executive and the
Executive shall serve the Company in accordance with terms and conditions set
forth herein, for the period of time (hereinafter referred to as the "Term")
commencing October 20, 1997 (the "Effective Date") and expiring on the second
anniversary thereof, unless sooner terminated as hereinafter set forth.
1.2 DUTIES OF EXECUTIVE. The Executive shall serve as the Chief
Financial Officer and Treasurer of the Company and shall perform the duties of
an executive commensurate with such position, shall diligently perform all
services as may be reasonably assigned to him by the Chief Executive Officer
(hereinafter referred to as the "CEO") and shall exercise such power and
authority as may, from time to time, be assigned to him by the CEO of the
Company. The Executive shall devote his full 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.
1.3 PLACE OF PERFORMANCE. In connection with his employment by the
Company, the Executive shall be placed the Company's principal executive offices
in Dade County, Florida, except for required travel on the Company's business.
2. COMPENSATION.
2.1 SALARY AND BONUS. During the Term, the Executive shall receive (a)
a base salary at the annual rate of $115,000.00 for the first year and $120,000
for the second year (the "Base Salary"), such base salary to be payable in
substantially equal installments consistent with the Company's normal payroll
schedule, subject to applicable withholding and other taxes and (b) guaranteed
bonus payments of $10,000.00 at the end of the first year of the Term, and
$10,000.00 at the end of the second year of the Term. Any additional bonuses to
the Executive shall be granted at the sole discretion of the CEO, or the
Company's Board of Directors.
2.2 STOCK OPTION GRANT. The Executive shall be granted an option (the
"Option") to purchase Fifty Thousand (50,000) shares of the Company common
stock, par value $.001 per share (the "Common Stock"), at a purchase price of
$6.25 per share (such price per share representing the fair market value of the
common stock at the time the offer of employment was made to the Executive).
Twenty percent [20%] of the
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Option shall vest and become exercisable immediately upon the execution of this
Agreement; the remaining eighty percent [80%] shall vest and become exercisable
in forty percent [40%] increments on each anniversary date of this Agreement.
Notwithstanding any of the foregoing, the Option shall expire ninety [90] days
after the date of termination of this Agreement. All other terms of the Option
not inconsistent with the foregoing, shall be as set forth in an option
agreement signed by the Company.
3. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
3.1 EXPENSE ALLOWANCE. During the Term, the Executive shall receive an
expense allowance of Three Hundred Dollars [$300.00] per month (exclusive of
meals and out of town travel reimbursements), subject to applicable withholding
and other taxes, to be used at the discretion of the Executive.
3.2 EXPENSE REIMBURSEMENT. During the Term, the Company, upon the
submission of supporting documentation by the Executive, shall reimburse the
Executive for all reasonable expenses actually paid or incurred by the Executive
in the course of and pursuant to the business of the Company, including expenses
for travel and entertainment.
3.3 OTHER BENEFITS. The Executive shall be entitled to participate in
all medical, hospitalization, dental plan, group life insurance, dental and any
and all other plans as are presently and hereinafter offered by the Company to
its employees and other top executives.
3.4 WORKING FACILITIES. The Company shall furnish the Executive with an
office, a secretary and such other facilities and services suitable to his
position and adequate for the performance of his duties hereunder.
4. TERMINATION:
4.1 TERMINATION FOR CAUSE. The Company shall at all times have the
right, upon written notice to the Executive, to terminate the Executive's
employment hereunder for cause. For purposes of this Agreement, the term "Cause"
shall mean (i) a material breach of this Agreement which is not cured within 15
days after receipt by the Executive of written notice of same; (ii) fraud,
embezzlement, misappropriation of funds or breach of trust; (iii) the charging
or indictment of the Executive with the any criminal act which is a felony; (v)
material, willful or knowing failure or refusal by the Executive to perform his
duties hereunder; (vi) disability of the Executive which prohibits the Executive
from performing his duties hereunder for a period of 60 consecutive days; and/or
(vii) the failure of the Executive to adhere to the Company's Compliance
Program. Any termination for Cause shall be made in writing to the Executive
which notice shall set forth in detail all acts or omissions upon which the
company is relying for such termination. Upon any termination pursuant to this
Section 4.1, the Executive shall be entitled to be paid his Base Salary accrued
through the date of termination and any unpaid bonus previously awarded
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by the Compensation Committee and the Company shall have no further liability
hereunder, except for unexercised vested options.
4.2 TERMINATION WITHOUT CAUSE. At any time the Company shall have the
right to terminate the Executive's employment hereunder by written notice to the
Executive. In the event the Executive is terminated without Cause, this
Agreement shall be terminated and the Executive shall be entitled to continue to
receive his monthly Base Salary compensation for a period of one year from the
date of such termination and any unpaid bonus previously awarded by the
Compensation Committee. Except as provided in this Section 4.2, 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 Sections 3.1 and 3.2 hereof). Notwithstanding the
foregoing, the Executive shall have the right to exercise his vested stock
options pursuant to Section 2.2 above and shall be obligated to use his best
efforts to seek employment (subject to the restrictions set forth in Section 6
hereof) following such termination on terms comparable to those provided
hereunder and to mitigate to the fullest extent possible any and all amounts due
and payable hereunder.
4.3 DEATH. In the event of the death of the Executive during the term
of employment hereunder, the Company shall pay to the Personal Representative of
the Estate of the deceased Executive any unpaid base salary accrued through the
date of death and any unpaid bonus previously awarded by the Compensation
Committee, and said Personal Representative shall have the right to exercise any
stock option the Executive has under Section 2.2. Except as provided in this
Section 4.3, the Company shall have no further liability hereunder (other than
for reimbursement for reasonable business expenses incurred prior to the date of
the Executive's death, subject, however, to the provisions of Sections 3.1 and
3.2 hereof).
4.4 RESIGNATION BY EXECUTIVE. The Executive shall at all times have the
right, upon 90 days written notice to the Company, to terminate the Executive's
employment hereunder. Upon any termination pursuant to this Section 4.4, the
Executive shall be entitled to be paid his accrued Base Salary and any unpaid
bonus previously awarded by the Compensation Committee and the Company shall
have no further liability hereunder. Upon resignation, the Company has the
option to waive the notice requirements and to terminate the Executive
immediately.
5. FULL SETTLEMENT. The Company's obligation to make payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company may have against the Executive or others.
6. RESTRICTIVE COVENANTS.
6.1 NON-COMPETITION. During the Term and for a period of six months
following the termination (other than without Cause, as defined in Section 4.1)
of the Executive's employment by the Company (not
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including Executive's voluntary resignation or expiration of the Term), the
Executive shall not directly or indirectly engage in or have any interest in,
directly or indirectly any sole proprietorship, partnership, corporation,
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 in competition with the Company in any and
all states in which the Company and/or any of its subsidiary conducts its
business during the Term or at the time Executive's employment with the Company
is terminated; provided, however, this non-competition covenant shall be
restricted in geographical scope to Dade County, Florida and other locations in
which the Company maintains operations and further provided that Executive may
continue to hold company securities and/or acquire, solely as an investment,
shares of capital stock or other equity securities of any company which are
traded on any national securities exchange or are regularly quoted in the
over-the-counter market, so long as Executive does not control, acquire a
controlling interest in or became a member of a group which exercises direct or
indirect control of more than 5% of any class of capital stock of such
corporation.
6.2 NONDISCLOSURE. During the Term and following termination of the
Executive's employment with the Company, Executive shall not divulge,
communicate, use to the detriment of the Company or for the benefit of any other
person or persons, or misuse in any way, any Confidential Information (as
hereinafter defined) pertaining to the business of the Company, any Confidential
Information or data now or hereafter acquired by the Executive with respect to
the business of the Company (which shall include, but not be limited to,
information concerning the Company's financial condition, prospects, technology,
customers, suppliers, partners, methods of doing business and marketing and
promotion of the Company's services) shall be deemed a valuable, special and
unique asset of the Company that is received by the Executive in confidence and
as a fiduciary, and Executive shall remain a fiduciary to the Company with
respect to all such information. For purposes of this Agreement "Confidential
Information" means information disclosed to the Executive or known by the
Executive as a consequence of or through his employment by the Company
(including information conceived, originated, discovered or developed by the
Executive) prior to or after the date hereof and not generally discovered or
developed by the Executive) prior to or after the date hereof, and not generally
known about the Company or its business. Notwithstanding the foregoing, nothing
herein shall be deemed to restrict the Executive from disclosing Confidential
Information to the extent required by law.
6.3 NONSOLICITATION OF EMPLOYEES. During the Term and for a period of
one year following termination of the Executive's employment with the Company,
Executive shall not directly or indirectly for himself or for any other person,
firm, corporation, partnership, association or other entity, attempt to employ
or enter into any contractual arrangement with any employee or former employee
of the Company, unless such employee or former employee has not been employed by
the company for a period in excess of six months.
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6.4 BOOKS AND RECORDS. All books, records, accounts and similar
repositories of Confidential Information of the Company, whether prepared by the
Executive or otherwise coming into the Executive's possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company upon termination of this Agreement or on the Board's request at any
time.
7. INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Executive 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 Executive 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 Executive or any of his affiliats,
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.
9. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or when deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company: Continucare Corporation
c/o Xxxxxxx X. Xxxxxxxxx
Chief Executive Officer
000 X.X. 0 Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
If to the Executive:
Xxxxxx X. Xxxxx
000 Xxxxxxx Xxxxxxxxx
#000
Xxx Xxxxxxxx, XX 00000
or to such other address as either party hereto may, from time to time, give
written notice to the other.
10. 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. Notwithstanding the foregoing, neither party may assign its rights or
benefits, or delegate any of its duties, hereunder without the prior written
consent of the other party hereto.
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11. 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 portion 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 Ageement 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 section or sections had not been inserted. If
such invalidity is caused by duration, geographic scope or both, the otherwise
invalid provision will be considered to be reduced to a period or area which
would cure such invalidity.
12. 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.
13. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of a breach, by either or both
of them, 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 the
injunction of any action constituting a breach of any of the terms or provision
of this Agreement, then the party found to be at fault shall pay all reasonable
court costs and attorneys' fees of the other.
14. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
(other than the parties hereto and, in the case of Executive, his heirs,
Personal Representative and/or legal representative) any rights or remedies
under or by reason of this Agreement.
IN 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
Chief Executive Officer
President and Chairman of
the Board.
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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