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EXHIBIT 10.21
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT BETWEEN CHARLES M. FERNANDEZ
("EXECUTIVE") AND CONTINUCARE CORPORATION (f/k/a ZANART ENTERTAINMENT
INCORPORATED) (HEREINAFTER THE "COMPANY"), ENTERED INTO AS OF THE 1ST DAY OF
OCTOBER 1999
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In consideration of the sum of $1 and other good and valuable
consideration the receipt of which is hereby acknowledged, the employment
agreement between the Company and the Executive dated September 11, 1996
("Agreement") is hereby amended effective as of the date hereof as follows:
1. Paragraph 2 of the Agreement is hereby amended to read as
follows:
"2. Term. Except as otherwise provided in Section 5
hereof, the term of this Agreement shall continue through the
date hereof and shall terminate as provided below ("Term").
The Term shall be a continuous one year period commencing
this date and running for a period such that on each
"Anniversary Date", as defined below, an additional year
automatically shall be added. Within 60 days prior to any
Anniversary Date either party may provide written notice,
with or without cause, to the other party of that party's
intention not to extend the Term of this Agreement beyond the
number of years then remaining in the Term, which number
shall always be one. Such written notice shall be deemed the
notice to terminate this Agreement at the end of the one year
term then in effect. The "Anniversary Date", as used herein,
shall be the 12th day of July of each year during the Term,
including each year beyond the first one year of the Term. It
is the intention of the parties that the Term as of each
Anniversary Date automatically shall be one year, that one
year written notice shall be required to terminate this
Agreement, except as otherwise provided in Section 5 hereof
and that said written notice to terminate may only be given
on an Anniversary Date."
2. Paragraph 3.1 of the Agreement is hereby amended to read as
follows:
"3.1 Base Salary. The Executive shall receive a base salary
at the annual rate of Two Hundred Fifty Thousand Dollars
($250,000) (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. Paragraph 3.2 of the Agreement is hereby amended to read as
follows:
"3.2 Bonus. For each fiscal year of the Executive employment
commencing with the fiscal year commencing July 1, 1999, the
Executive shall receive a bonus (the "Bonus") equal to five
(5%) percent of the Company's EBITDA in excess of $3 million
for said fiscal year as determined by the Company's regular
auditors, which amount shall be payable as soon as
practicable
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following such determination; provided, that if this
Agreement is terminated earlier as set forth herein, then the
Executive shall be entitled to receive the amount of the
Bonus which has not been theretofore paid at the time of such
termination. The Executive shall also be eligible to receive
a bonus in an amount determined by the majority vote of all
members of the Company's Board of Directors, based upon the
Company's operating results, financial condition, prospects
and intended utilization of earnings, if any."
4. Paragraph 5.1 of the Agreement is hereby amended to read as
follows:
"5.1 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"
(as hereinafter defined). For purpose of this Agreement, the
term "Cause" shall mean, subject to the proviso in the last
sentence of Section 1.2 of this Agreement, (i) the willful
failure or refusal of the Executive to perform the duties or
render the services assigned to him from time to time by the
Board (except during reasonable vacation periods or sick
leave), (ii) the association, directly or indirectly, of the
Executive, for his profit or financial benefit, with any
person, firm, partnership, association, entity or corporation
that competes in any material way with the company, (iii) the
disclosing or using of any material trade secret or
confidential information of the company at any time by the
Executive, except as required in connection with his duties
to the Company, (iv) the breach by the Executive of his
fiduciary duty or duty of trust to the Company."
5. Paragraph 5.4 of the Agreement is hereby amended to read as
follows:
"5.4 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; provided,
however, that the Company shall continue to pay to the
Executive the Base Salary for a period of one year following
the effective date of termination specified in such notice in
accordance with the Company's normal payroll policies and the
amount, if any, of the unpaid Bonus in accordance with
Section 3.2 hereof. The Company shall have no further
liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of
termination, subject, however to the provisions of Section
4.1)."
6. Paragraph 5.5 of the Agreement is hereby amended to read as
follows:
"5.5 Resignation by Executive. The Executive shall at all
times have the right, upon 30 days' written notice to the
Company, to terminate the Employee's employment hereunder.
Upon any termination pursuant to this Section 5.5, the
Employee shall be entitled to be paid his Base Salary to the
date of the termination and the amount of, if any, the unpaid
bonus in
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accordance with Section 3.2 hereof and any accrued vacation
time, and the Company shall have no further liability
hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the date of termination,
subject, however, to the provisions of Section 4.1).
7. Paragraph 6.1 of the Agreement is hereby amended to read as
follows:
"6.1 Non-competition. While employed by the company and for a
period of six months following the termination of the
Executive's employment hereunder (other than a termination
without cause, as contemplated by Section 5.4 hereof), the
Executive 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 healthcare
business (the "Business") in competition with the Company or
its affiliates in Florida or in any other state in which 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) are conducting business at the time of
termination or separation. The Company acknowledges and
agrees that (i) the Executive is now engaged and hereafter
may engage in other activities unrelated to the Company for
his own account, and that no aspect or element of such
activities shall (A) be deemed to be engaged in for the
benefit of the Company or (B) to entitle the Company or any
other shareholder of the Company to participate in such
activities in any respect; provided, that such unrelated
activities shall not consist, in whole or in part, directly
or indirectly, of any aspect of the healthcare business or
otherwise constitute a conflict of interest."
8. Paragraph 6.3 of the Agreement is hereby amended to read as
follows:
"6.3 Nonsolicitation of Employees and Customers. While
employed by the Company and for a period of six months
following the date of his employment is terminated hereunder,
the Executive shall not, directly or indirectly, for himself
or for any other person, firm, corporation, partnership,
association or other entity, (i) attempt to employ or enter
into any contractual 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, and/or (ii) call on or solicit any of
the actual or targeted patients of the Company, nor shall the
Executive make known the names and addresses of such
patients."
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IT WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
CONTINUCARE CORPORATION
By: /s/ Spencer J. Angel
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/s/ Charles M. Fernandez
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CHARLES M. FERNANDEZ
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