oneilconsultingagreement.htm


    
      
Back to Form
8-K

      Exhibit 10.1


      

      December
16, 2009

       

       

       

      Mr.
Thomas F. O’Neil III

      c/o
WellCare Health Plans, Inc.

      8735
Henderson Road

      Renaissance
Two

      Tampa, FL
33634

      


      


      
        	
                 
      

              	
                Re:

              	
                Consulting
      Agreement

              


      

       

      Dear
Tom:

       

      This
letter memorializes the terms of your consulting arrangement with WellCare
Health Plans, Inc., a Delaware corporation (“WellCare”), and Comprehensive
Health Management, Inc., a Florida corporation (the “Company”).  If you
agree with its terms, please return to us a countersigned copy of this letter,
which will become a binding agreement on our receipt.

       

      
        	
                1.  

              	
                Engagement as
      Consultant

              


      

       

      
        	
                             
              (a)  

              	
                Beginning
      on January 1, 2010, through your firm, you will serve as a consultant to
      Wellcare and the Company.  As a consultant, your duties during
      the Term of this letter (as defined in Section 3 below) will be to provide
      advice and consulting services as an independent contractor for about 20
      hours per week.  Your services under this letter will be as
      mutually agreed between you and the Executive Chairman of the Board of
      Directors of WellCare from time to time (the “Services”).

              


      

       

      
        	
                                       (b)  

              	
                Wellcare
      and the Company will provide you with an office at WellCare headquarters
      and appropriate administrative support during the Term for the purpose of
      performing the Services.

              


      

       

      
        	
                2.  

              	
                Expiration of
      Employment Agreement; Bonus Amounts for
  2009

              


      

       

      
        	
                                     
      (a)  

              	
                Until
      December 31, 2009, the terms and conditions of your employment with
      Wellcare and the Company will be governed by your Amended and Restated
      Employment Agreement with WellCare and the Company, dated as of June 3,
      2009 (your “Employment
      Agreement”).

              


      

       

      
        	
                                      
      (b)  

              	
                In
      accordance with its terms, your Employment Agreement will expire on
      December 31, 2009 (for clarity, the restrictive covenants contained in
      Article 5 of your Employment Agreement will continue as described in
      Section 6(a) of this letter).  From and after such time, you
      will cease to be employed by the Company as its Vice Chairman, cease to be
      employed by WellCare as its Vice Chairman, and cease to be a director,
      officer, employee and/or hold other position with WellCare, the Company,
      and all of their subsidiaries and affiliates (collectively, the “Group”), other than as
      set forth in this letter.  Other than as set forth in Section
      2(c) of this letter, you agree that no other severance payments or similar
      or other termination payments will be payable to you under your Employment
      Agreement or otherwise.

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	
                                      
      (c)  

              	
                The
      parties hereto agree that, assuming you remain employed with the Group
      under your Employment Agreement through December 31, 2009 (1) the amount
      of your bonus payable to you in respect of calendar year 2009 pursuant to
      Section 2.2 of your Employment Agreement will be $250,000 (payable no
      later than January 15, 2010); (2) the amount of the “special bonus” that
      will be paid to you in respect of calendar year 2009 pursuant to Section
      2.2 of your Employment Agreement will be $125,000 (payable no later than
      January 15, 2010); (3) you will receive $500,000 on December 31, 2009
      pursuant to Section 3.5(i) of your Employment Agreement; and (4) the
      amount of the “additional payment” described in Section 3.5(ii) of your
      Employment Agreement will be $250,000 (payable no later than January 15,
      2010), all of which will be payable in cash, and subject to all applicable
      employee income and payroll tax
withholdings.

              


      

       

      
        	
                3.  

              	
                Term

              


      

       

      
        	
                                      
      (a)  

              	
                The
      period of your consulting duties under this letter will be from January 1,
      2010 through June 30, 2010 (the “Term”).

              


      

       

      
        	
                                      
      (b)  

              	
                The
      Group or you may terminate this letter and the Term as provided in
      Section 5.

              


      

       

      
        	
                4.  

              	
                Consulting Fees;
      Equity; Expense
Reimbursement

              


      

       

      
        	
                                      
      (a)  

              	
                Your
      consulting fee for the Services will be $31,250 per month during the
      Term.  The parties agree to assess in good faith the consulting
      fee from time to time during the Term (based upon, among other factors,
      the level and quality of Services being provided), and to make reasonable
      adjustments, if any, based on such review.  Your consulting fee
      will be payable in cash on a monthly basis, in
  arrears.

              


      

       

      
        	
                                      
      (b)  

              	
                As
      an additional fee for your services, your outstanding and unvested Group
      restricted stock, stock options, and restricted stock units will continue
      to vest and, with respect to the stock options, become exercisable, during
      the Term, in accordance with their normal vesting schedules set forth in
      the equity award agreements between WellCare and you, conditioned on your
      continued provision of Services under this letter as of the date(s) of
      such vesting.  All of your outstanding equity awards that have
      not vested as of the last day of the Term will be
      cancelled.  With respect to your stock options, you will have a
      period of 90 days after the date of the expiration or termination
      (whichever occurs first) of the Term to exercise your vested stock
      options.

              


      

       

       

      
        
          
          

        

        
          -2-

          
            

          

        

        
          
          

        

      

       

      
        	
                                      
      (c)  

              	
                The
      Group will reimburse you in accordance with its reimbursement policies
      from time to time for your actual out-of-pocket expenses as reasonably
      incurred by you in connection with your performance of the Services,
      including reasonable travel approved in advance by the
      Group.  You agree to abide by Group policies and procedures
      related to the Services and to the reimbursements to be provided under
      this letter.

              


      

       

      
        	
                5.  

              	
                Termination

              


      

       

      
        	
                                       (a)  

              	
                The
      Group may terminate this letter and the Term before its scheduled
      expiration by written notice to you if you are in material breach of this
      letter.  The Group may also terminate this letter and the Term
      for any other reason (or no reason), with or without notice, upon which
      (A) the Group will pay you the remaining unpaid installments of your
      consulting fee set forth in Section 4(a) in a lump sum, and (B) you will
      immediately vest in the outstanding equity described in Section 4(b) in
      which you would have vested had the Term continued through June 30,
      2010.

              


      

       

      
        	
                                      
      (b)  

              	
                You
      may terminate this letter and the Term before its scheduled expiration by
      giving at least 45 calendar days advanced written notice to
      WellCare.

              


      

       

      
        	
                                      
      (c)  

              	
                This
      letter and the Term will automatically terminate in the event of your
      death or disability during the
Term.

              


      

       

      
        	
                                      
      (d)  

              	
                In
      the event of a termination other than pursuant to the second sentence of
      Section 5(a) of this letter, no further consulting payments or equity
      vesting will occur under this
letter.

              


      

       

      
        	
                6.  

              	
                Restrictions

              


      

       

      
        	
                                      
      (a)  

              	
                The
      parties hereto agree and acknowledge that the restrictive covenants set
      forth in Article 5 of your Employment Agreement will remain in full force
      and effect after expiration of your Employment Agreement, references to
      “employment” therein will be deemed to refer to your consultancy
      hereunder, where appropriate, and, solely for purposes of Section 5.3 of
      your Employment Agreement, the “Term” will be deemed to be coextensive
      with the Term of this letter (and, for clarity, your “Termination Date”
      solely for this purpose will be deemed to be June 30,
      2010).  Without limiting the protections afforded to the Group
      in relation to the foregoing, the Group specifically acknowledges and
      agrees that you may engage in other employment or services for other
      businesses during the Term, including self employment involving the
      establishment of a legal practice or a consulting firm specializing in,
      among other things, compliance activities and governmental investigations,
      consistent with your obligations under Article 5 of your Employment
      Agreement.

              


      

       

      
        	
                                      
      (b)  

              	
                The
      obligations contained in this Section 6 will endure even after the
      termination of this letter and the
Term.

              


      

       

      
        
          
          

        

        
          -3-

          
            

          

        

        
          
          

        

      

       

      
        	
                7.  

              	
                Representations and
      Warranties

              


      

       

      In your
performance of the Services, you will:

       

      
        	
                                      
      (a)  

              	
                Devote
      the necessary and appropriate amount of time, attention and skill to the
      performance of your duties;

              


      

       

      
        	
                                       (b)  

              	
                Use
      your best efforts to promote the Group’s
  interests;

              


      

       

      
        	
                                      
      (c)  

              	
                Abide
      by the Group’s rules and procedures in effect, including but not limited
      to the code of conduct, all travel and entertainment and luxury policies;
      and

              


      

       

      
        	
                                      
      (d)  

              	
                Not
      disparage the Group, its officers, directors or
  employees.

              


      

       

      
        	
                8.  

              	
                Independent
      Contractor

              


      

       

      You agree
that you will be performing the Services during the Term as an independent
contractor and not as an employee of the Group.  You will be
responsible for all taxes and other non-reimbursable expenses attributable to
the rendition of the Services.  Neither you nor the Group will be or
become liable to or bound by any representation, act or omission of the
other.

       

      
        	
                9.  

              	
                Release of
      Claims

              


      

       

      You agree
to waive and release the Group and their respective officers, directors,
employees and agents from any and all claims by executing the Waiver and Release
Agreement set forth on Exhibit A appended to your Employment Agreement on or
prior to December 31, 2009.

       

      
        	
                10.  

              	
                Miscellaneous

              


      

       

      
        	
                                      
      (a)  

              	
                The
      provisions of Article 6 and Article 7 of your Employment Agreement are
      hereby incorporated by reference into this
  letter.

              


      

       

      
        	
                                       (b)  

              	
                You
      agree that you will not issue any press release or public statement of any
      kind, or publicize this letter or the business relationship between the
      parties without the prior review and approval of the Group, except as
      required by applicable law upon prior notice to the
  Group.

              


      

       

      
        	
                                      
      (c)  

              	
                This
      letter constitutes the entire agreement of the parties hereto and
      supersedes all prior and contemporaneous representations, proposals,
      discussions and communications, whether oral or in
      writing.  This letter may be modified only in a writing signed
      by you and WellCare and the
Company.

              


      

       

      
        
          
          

        

        
          -4-

          
            

          

        

        
          
          

        

      

       

      Accepted
and Agreed:

      


      


      


      /s/ Thomas F. O’Neil
II                               
                                                                

      Thomas F.
O’Neil III

      
 

      WellCare
Health Plans, Inc.

       

      


      
        	
                By:

              	
                /s/ Charles
      Berg                                
      

              	 


      

      
        	
                 
      

              	
                Name:  Charles
      Berg

              


      

      
        	
                 
      

              	
                Title:  Executive
      Chairman

              


      

      


      


      Comprehensive
Health Management, Inc.


      


      


      
        	
                By:

              	
                /s/ Timothy
      Susanin                         
      

              	 


      

      
        	
                 
      

              	
                Name:  Timothy
      Susanin

              


      

      
        	
                 
      

              	
                Title:  General
      Counsel

              


      

      


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