EXHIBIT 10.1
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT is entered into as of October 1, 2003, by and
between CONTINUCARE CORPORATION (the "Company") and SPENCER J. ANGEL (the
"Employee").
WHEREAS, the Employee is employed by the Company as its President,
Chief Executive Officer and Chief Operating Officer and serves on the Board of
Directors of the Company; and
WHEREAS, the Employee has, with the Company's consent, resigned his
position as President, Chief Executive Officer and Chief Operating Officer and
a director of the Company, effective as of October 1, 2003 (the "Severance
Date"); and
WHEREAS, the Employee and the Company desire to enter into this
Agreement to set forth their agreement with respect to such termination and
certain other matters.
NOW, THEREFORE, in consideration of the agreements and covenants
hereinafter set forth, the parties agree as follows:
1. TERMINATION OF EMPLOYMENT. Effective as of the Severance
Date, the Employee hereby resigns his employment with the Company and his
employment with the Company is terminated. From and after the Severance Date,
except as provided in this Agreement, the Employee will not have any further
rights, whether to employment, compensation (including any bonus) or benefits
from the Company or any of its Affiliates, whether under the Employment
Agreement dated as of July 13, 1999 by and between the Company and the
Employee, as amended (the "Employment Agreement"), or otherwise. As of the
Severance Date, Employee will also resign from the Company's Board of Directors
and from all other positions and directorships that the Employee may hold with
the Company or any of its affiliates. During the period from the Severance Date
through December 31, 2003, Employee will remain available to the Company at no
charge to answer questions and provide informational assistance to assist in
the transition of the Employee's functions to other company personnel (the
"Consulting Services"). Company will cover all reasonable expenses incurred by
Employee in connection with the Consulting Services within five (5) business
days after submission of appropriate documentation thereof to the Company.
Employee will retain Company laptop equipment through October 1, 2004 so as to
assist Employee in complying with all reasonable requests for Consulting
Services. The Company and the Employee will work together in good faith to
insure that any Consulting Services that the Company may request the Employee
to perform do not hinder the ability of the Employee to seek other employment
or interfere with any other employment that the Employee may obtain. The
Consulting Services will in no way interfere with Employee's commitments,
whether they be employment related, business activities related or vacation
related, and will be provided by Employee to Company subject to Employee'
availability. The Company's inability to accommodate Employee's schedule or the
Employee's inability to accommodate the Company's schedule shall in no way be
deemed grounds for termination of this Severance Agreement.
2. COMPENSATION.
EXHIBIT 10.1
(a) BASE COMPENSATION. In consideration for the
provision of the Consulting Services hereunder and the Employee's compliance
with all of the other terms and conditions of this Agreement, the Company will
pay to the Employee an aggregate amount of $250,000 for the period from the
Severance Date through September 30, 2004, payable in accordance with the
Company's normal payroll practices (the "Base Compensation"). All such payments
will be net of any applicable withholding taxes.
(b) ADDITIONAL SEVERANCE. In addition to the Base
Compensation, within five (5) days after the Severance Date the Company shall
pay the Employee a lump-sum cash severance payment of $17,500.
(c) ACCRUED SALARY. In addition to the Base Compensation
and Additional Severance, the Company shall pay the Employee a lump-sum cash
payment equal to any unpaid salary that has accrued through the Severance Date,
net of any applicable withholding taxes ("Accrued Salary"), payable in
accordance with the Company's normal payroll practices.
(d) EXPENSE REIMBURSEMENT. In addition to the Base
Compensation, Additional Severance and Accrued Salary, within five (5) business
days of submission of appropriate documentation thereof to the Company, the
Company shall reimburse the Employee for all reasonable employment related
expenses, including cell phone, that Employee incurred through the Severance
Date.
3. STOCK OPTIONS. Effective as of the Severance Date all stock
options to purchase shares of the Common Stock, $.0001 par value, of the
Company (whether vested or unvested) ("Stock Options") will terminate, and from
and after the Severance Date the Employee will have no right to exercise any
Stock Options. In consideration for the termination of all of the Employee's
Stock Options, the Company shall pay to the Employee within five (5) days after
the Severance Date a lump-sum cash payment of $68,000.
4. RESTRICTIVE COVENANTS. The Employee and the Company
acknowledge and agree that the restrictions set forth in Sections 6.1, 6.2,
6.3, 6.4 and 7 of the Employment Agreement, shall survive the Severance Date
unimpaired and in full force and effect for the respective periods provided for
in the Employment Agreement in the case of the Employee's resignation of his
employment. The provisions of Sections 6.1, 6.2, 6.3, 6.4 and 7 of the
Employment Agreement are incorporated by reference herein as if and with the
same effect as if set forth herein verbatim. The parties to this Severance
Agreement hereby agree that as of the date of the execution of this Severance
Agreement the Company is currently in the businesses of, (a) running staff
model clinics, (b) running Independent Practice Associations ("IPAs") and (c)
running Home Health Agencies (hereinafter collectively the "Continucare
Businesses"). Additionally the parties to this Severance Agreement hereby agree
that the Non-competition restrictive covenant contained in paragraph 6.1 of the
Employment Agreement shall be limited solely to the Continucare Businesses
listed hereinabove. It is understood and agreed that at any time during which
the restrictions set forth in Section 6.1 of the Employment Agreement are in
effect, the Employee may, by written notice to the Company, be released from
the obligations of Section 6.1 of
EXHIBIT 10.1
the Employment Agreement, and from and after the date of the Employee's notice
of his release, the Company shall be released from any further obligation to
pay any unpaid Base Compensation. The foregoing notwithstanding, and without
limiting or impairing any other provision of this Agreement, (a) for a period
of one year after the Severance Date, the Employee shall not, directly or
indirectly, solicit, induce or influence either Humana Medical Plans, Inc. or
Vista Healthplan of South Florida, Inc. (or any of their respective successors)
to discontinue or reduce the extent of their relationships with the Company and
its affiliates or otherwise disrupt their relationships with the Company and
its affiliates, and (b) in no event shall any release of the Employee from the
restrictions of Section 6.1 of the Employment Agreement be deemed or construed
as a release of the Employee from any of his obligations under Sections 6.2,
6.3, 6.4 or 7 of the Employment Agreement.
5. (a) NON-DISPARAGEMENT AND FUTURE CONDUCT. The Employee and
the Company each agree that they will not make any comments, either written or
oral, which could be construed as negative concerning the other or any of the
other's affiliates or any of the other's or its affiliate's directors,
officers, personnel, facilities, services or programs to any individual or
entity, including but not limited to present or potential, customers, vendors,
employees, or financial or credit institutions.
(b) INJUNCTION. It is recognized and hereby acknowledged by
the parties that a breach of the above paragraph 5(a) will cause irreparable
harm and damage, the monetary amount of which may be virtually impossible to
ascertain. As a result, the parties recognize and hereby acknowledge that the
non breaching party 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 paragraph 5(a) of this Settlement Agreement by the
breaching party. The imposition of an injunction pursuant to this paragraph
5(b) does not in any way limit a damage claim or any other claim that the non
breaching party my have as against the breaching party.
6. GENERAL RELEASE.
(a) RELEASE. The Employee does hereby release and discharge
the Company and each of its affiliates and each of their respective directors,
officers, personnel and agents (the "Released Parties") from any and all
claims, demands or liabilities whatsoever, whether known or unknown, which the
Employee ever had or may now have against any Released Party, from the
beginning of time to the Severance Date, including, without limitation, any
claims, demands or liabilities in connection with the Employment Agreement or
the Employee's employment, including wrongful discharge, breach of express or
implied contract, unpaid wages, breach of a covenant of good faith and fair
dealing, constructive discharge or pursuant to any federal, state, or local
employment laws, regulations, or executive orders prohibiting inter alia, age,
race, sex, national origin, religion, handicap, and disability discrimination
or retaliation, such as Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1866, the Employee Retirement Income Security Act of 1974, the
Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, the
Worker Adjustment Retraining Notification Act, the Immigration Reform and
Control Act, the Family and Medical Leave Act, the Federal Constitution; and
any and all other federal, state, and local laws and regulations prohibiting,
without limitation, conspiracy, intentional and/or negligent infliction of
emotional distress, defamation, misrepresentation or
EXHIBIT 10.1
fraud, negligence, negligent supervision, hiring, or retention, assault,
battery, detrimental reliance, or any other offense. The foregoing release will
not waive rights or claims that may arise under this Agreement. The Employee
has not assigned or otherwise conveyed any of his right in and to any claims of
the types set forth above.
(b) RELEASE ACKNOWLEDGEMENTS. The Employee acknowledges
that: (i) no consideration other than as provided for by this Agreement has
been or will be provided by the Released Parties, (ii) he will make no claim
and hereby waives any right he may now have or may hereafter have, based upon
any alleged oral modification of the foregoing release, and (iii) the foregoing
release does not constitute an admission of a violation of any law, order,
regulation, or enactment, or of wrongdoing of any kind by any Released Party.
(e) INDEMNIFICATION. The Company and the Employee
acknowledge and agree that the Director Indemnification Agreement entered into
by the Employee and the Company in October 2002 shall remain in full force and
effect from and after the Severance Date in accordance with its terms.
7. MISCELLANEOUS.
(a) Each party will bear its own costs and expenses in
connection with the preparation, negotiation and execution of this Agreement.
(b) This Agreement and Sections 6.1, 6.2, 6.3, 6.4 and 7 of
the Employment Agreement together contain the entire understanding and
agreement of the parties relating to the subject matter hereof and supersede
all prior communications, commitments and understandings and this Agreement may
not be amended or modified except in a writing signed by both parties hereto.
(c) This Agreement will be governed by the laws of the State
of Florida without regard to the conflicts of laws principles thereunder.
(d) If any action or proceeding is brought in any court by
any party to enforce any provision of this Agreement, the prevailing party
shall be entitled to recover from the non-prevailing party all of its
reasonable costs and expenses incurred in connection with such action,
including reasonable attorneys' fees and disbursements through and including
all appeals.
(e) This Agreement may be executed in counterparts, each of
which will be considered an original but which will constitute one and the same
agreement.
(f) The obligations of the Employee may not be delegated
and, the Employee may not, without the Company's prior written consent, assign,
transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any interest herein. Any such attempted delegation or disposition
shall be null and void and without effect. Subject to the foregoing, this
Agreement will be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns, heirs, beneficiaries, estates,
executors, personal representatives and legatees.
EXHIBIT 10.1
(g) The obligations of the Company may not be delegated or
assigned. In the event that the Company enters into a agreement to sell
substantially all of the assets or stock of the Company or merger the Company
then the Company's obligation to pay Employee Base Compensation shall become
immediately due and payable.
(h) Each provision of this Agreement will be construed
simply according to its fair meaning and not strictly against the party causing
it to have been drafted.
(i) In the event that any provision or portion of this
Agreement is determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement will be unaffected thereby and will
remain in full force and effect.
(j) The parties each agree not to disclose the terms and
conditions of this Agreement to any person or entity for any purpose whatsoever
other than as may be required by applicable law.
EMPLOYEE STATES THAT HE HAS CAREFULLY READ ALL THE PROVISIONS OF THIS
AGREEMENT, THAT THEY HAVE BEEN FULLY EXPLAINED TO HIM, THAT HE HAS HAD THE
OPPORTUNITY TO HAVE THIS AGREEMENT REVIEWED BY AN ATTORNEY, AND THAT HE FULLY
UNDERSTANDS ITS FINAL AND BINDING EFFECT, AND THAT THE ONLY PROMISES MADE TO
HIM ARE THOSE STATED HEREIN, AND THAT EMPLOYEE IS SIGNING THIS AGREEMENT WITH
THE FULL INTENT OF RELEASING THE RELEASED PARTIES OF AND FROM ALL CLAIMS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
CONTINUCARE CORPORATION
By: /s/ Richard C. Pfenniger, Jr.
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Richard C. Pfenniger, Jr.
Title: Chairman of the Board of Directors
EMPLOYEE
/s/ Spencer J. Angel
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Spencer J. Angel