Exhibit 10.1


 


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made on June 3, 2009 by and among
WELLCARE HEALTH PLANS, INC., a Delaware corporation (“WellCare”),
COMPREHENSIVE HEALTH MANAGEMENT, INC., a Florida corporation (the “Corporation”), and THOMAS F. O’NEIL III, an individual (“Executive”), with respect to the following facts and
circumstances:


 


RECITALS


 


WHEREAS, WellCare, the Corporation and Executive
entered into an Employment Agreement dated as of April 1, 2008 (the “Existing
Agreement”) pursuant to which the Executive is serving as Senior Vice
President, General Counsel and Secretary of WellCare and the Corporation;


 


WHEREAS, WellCare, the Corporation and Executive
wish to amend and restate the Employment Agreement, as set forth herein,
effective June 3, 2009, to provide that Executive will cease to serve as
Senior Vice President, General Counsel and Secretary of WellCare and the
Corporation on such effective date and instead will thereafter serve as Vice
Chairman of WellCare and the Corporation on the terms and conditions set forth
herein.


 


NOW, THEREFORE, in consideration of the mutual
promises, covenants and agreements set forth herein, the parties hereto agree
as follows:


 


ARTICLE
1


 


EMPLOYMENT,
TERM AND DUTIES


 


1.1           Employment.  The Corporation will hereby employ Executive
as Vice Chairman of the Corporation, upon the terms and conditions set forth in
this Agreement.  During the Term,
Executive also shall be appointed as Vice Chairman of WellCare.  Executive shall report directly to the
Executive Chairman of the Board of Directors of WellCare.


 


1.2           Term.  The Corporation will employ Executive, and
Executive will serve as Vice Chairman of the Corporation commencing on June 3,
2009 (the “Effective Date”) and continuing
thereafter for a term (the “Term”) ending
on December 31, 2009, unless earlier terminated under Article 4.  Prior to the Effective Date of this
Agreement, the Existing Agreement shall remain in effect in accordance with its
terms.


 


1.3           Duties.  Executive shall perform all the duties and
obligations reasonably associated with the positions of Vice Chairman and
consistent with the Bylaws of WellCare and the Corporation as in effect from
time to time, subject to the supervision of the Executive Chairman of the Board
of Directors of WellCare, and such other executive duties consistent with the
foregoing as are mutually agreed upon from time to time by Executive and the
Executive Chairman of the Board of Directors of WellCare.  Executive shall perform the services
contemplated herein faithfully and diligently. 
Executive shall devote substantially all his business time and efforts
to the rendition of such services; provided, that Executive may 


 

















 


participate
in social, civic, charitable, religious, business, educational or professional
associations and, with the prior approval of the Board of Directors of WellCare
(the “Board”), serve on the boards of
directors of companies so long as such participation does not materially interfere
with the duties and obligations of Executive hereunder.


 


1.4           Primary Work Location.  Effective on the Effective Date, Executive
will no longer be required to perform the services hereunder at the Corporation’s
offices located in the metropolitan area of Tampa, Florida.  Executive acknowledges and agrees that the
nature of the Corporation’s business will require travel from time to
time.  Corporation will pay or reimburse
Executive for all reasonable expenses incurred in traveling in connection with
his employment hereunder.


 


ARTICLE
2


 


COMPENSATION


 


2.1           Salary.  In consideration for Executive’s services
hereunder, the Corporation shall pay Executive a base salary at the rate of not
less than $41,667 per month during the Term, payable in accordance with the
Corporation’s regular payroll schedule from time to time (less any deductions
required for Social Security, state, federal and local withholding taxes, and
any other authorized or mandated similar withholdings).


 


2.2           Bonus.  Executive shall be entitled to earn a bonus
with respect to calendar year 2009, based upon achievement of the performance
objectives agreed to by the Corporation and Executive.  The targeted bonus shall be fifty percent
(50%) of Executive’s annual base salary for such year.  Any such bonus earned by Executive shall be
paid in cash within thirty (30) days after the delivery of audited financial
statements by the Corporation’s outside auditing firm; provided, however,
that the bonus shall, in all events, be paid to Executive by no later than March 15,
2010.  Executive may also receive special
bonuses in addition to his annual bonus eligibility at the discretion of the
Committee.


 


2.3           [intentionally omitted]


 


2.4           Definition of Change of Control.


 


2.4.1        For purposes of this
Agreement, a “Change of Control” shall mean the
occurrence of any of the following events:


 


(a)                                  The direct or
indirect acquisition by an unrelated Person or Group of Beneficial Ownership
(each as defined in Section 2.4.4) of stock that, together with stock
already Beneficially Owned by such Person or Group, constitutes more than 50%
of the voting power of WellCare’s issued and outstanding voting stock or more
than 50% of the fair market value of WellCare’s issued and outstanding stock;


 


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(b)                                 The direct or
indirect sale or transfer by WellCare of substantially all of its assets to one
or more unrelated Persons or Groups in a single transaction or a series of related
transactions;


 


(c)                                  The merger,
consolidation or reorganization of WellCare with or into another corporation or
other entity in which the Beneficial Owners of more than 50% of the voting
power of WellCare’s issued and outstanding voting securities immediately before
such merger, consolidation or reorganization do not own, directly or
indirectly, more than 50% of the voting power of the issued and outstanding
voting securities of the surviving corporation or other entity immediately
after such merger, consolidation or reorganization; or


 


(d)                                 During any
consecutive 12-month period, individuals who at the beginning of such period
constituted the Board (together with any new directors whose election to the
Board or whose nomination for election by the stockholders of WellCare was
approved by a vote of a majority of the directors on the Board then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the members of the Board then in office.


 


2.4.2        Notwithstanding Section 2.4.1,
none of the events set forth in Section 2.4.1 shall constitute a Change of
Control if such event is not a “Change in Control Event”  under Treasury Regulations Section 1.409A-3(i)(5) or
successor guidance of the Internal Revenue Service.


 


2.4.3        For purposes of determining
whether a Change of Control has occurred, a Person or Group shall not be deemed
to be “unrelated” if: (a) such Person or Group directly or indirectly has
Beneficial Ownership of more than 50% of the issued and outstanding voting
power of WellCare’s voting securities immediately before the transaction in
question, (b) WellCare has Beneficial Ownership of more than 50% of the
voting power of the issued and outstanding voting securities of such Person or
Group, or (c) more than 50% of the voting power of the issued and
outstanding voting securities of such Person or Group are owned, directly or
indirectly, by Beneficial Owners of more than 50% of the issued and outstanding
voting power of WellCare voting securities immediately before the transaction
in question.


 


2.4.4        The terms “Person,” “Group,” “Beneficial  Owner,”
and “Beneficial Ownership” shall have the
meanings used in the Securities Exchange Act of 1934, as amended.  Notwithstanding the foregoing, (a) Persons
will not be considered to be acting as a Group solely because they purchase or
own stock of WellCare at the same time, or as a result of purchases in the same
public offering, (b) Persons will 
be considered to be acting as a “Group” if they are owners of a
corporation that enters into a merger, consolidation, reorganization, purchase
or acquisition of stock, or similar business transaction, with WellCare, and (c) if
a Person, including on entity, owns stock both in WellCare and in a corporation
that enters into a merger, 


 


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consolidation,
reorganization, purchase or acquisition of stock, or similar transaction, with
WellCare, such Person shall be considered to be acting as a Group with other
Shareholders only with respect to the ownership in such corporation prior to
the transaction.


 


ARTICLE
3


 


EXECUTIVE
BENEFITS


 


3.1           Vacation.  Executive shall be entitled to not less than
four weeks of vacation each calendar year, without reduction in compensation,
and otherwise in accordance with the general policies of the Corporation
applicable generally to other senior executives of the Corporation.  Notwithstanding the foregoing, vacation not
used in one year will carry over to future years without limit.


 


3.2           Employee Benefits.  Executive shall receive all group insurance
and pension plan benefits and any other benefits on the same basis as are
available to other senior executives of the Corporation under the Corporation
personnel policies in effect from time to time. 
Executive shall receive all other such fringe benefits as the
Corporation may offer to other senior executives of the Corporation generally
under the Corporation personnel policies in effect from time to time, such as
health and disability insurance coverage and paid sick leave.  Commencing on the Effective Date and
continuing through September 11, 2009, Executive shall receive other
expense reimbursements of $4,600 per month (prorated for the partial month of September 2009)
for expenses incurred in connection with his employment with the Corporation.


 


3.3           Indemnification.  WellCare, the Corporation and Executive have
entered into an indemnification agreement (the “Indemnification
Agreement”) providing, among other things, for indemnification of
Executive to the fullest extent permitted by applicable law.  The Indemnification Agreement will continue
in effect in accordance with its terms.


 


3.4           Reimbursement for Expenses.  Executive shall be reimbursed by the
Corporation for all documented reasonable expenses incurred by Executive in the
performance of his duties or otherwise in furtherance of the business of the
Corporation in accordance with the policies of the Corporation in effect from
time to time.


 


3.5           Additional Payments.  So long as Executive remains employed by the
Corporation through December 31, 2009, he shall be paid by the Corporation
an amount equal to the sum of (i) $500,000, and (ii) the higher of (x) his
annual bonus for calendar year 2008 or (y) his annual bonus for calendar
year 2009.  The amount set forth in
clause (i) of this Section 3.5 shall be paid to Executive in cash on December 31,
2009, and the amount set forth in clause (ii) of this Section 3.5
shall be paid to Executive in cash within thirty (30) days after the delivery
of audited financial statements by the Corporation’s outside auditing firm,
provided that such clause (ii) amount shall, in all events, be paid to
Executive by no later than March 15, 2010.


 


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ARTICLE
4


 


TERMINATION


 


4.1           Grounds for Termination.


 


4.1.1        Death or Disability.  Executive’s employment shall terminate immediately
in the event of Executive’s death or Disability.  “Disability”
means Executive is unable to engage in any substantial gainful business
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or that has rendered Executive unable
to effectively carry out his duties and obligations under this Agreement or
unable to effectively and actively participate in the management of WellCare
and the Corporation 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 Term.


 


4.1.2        Cause.  The Corporation shall have the right to
terminate Executive’s employment by giving written notice of such termination
to Executive upon the occurrence of any one or more of the following events (“Cause”):


 


(a)                                  any willful act
or willful omission, other than as a result of Executive’s Disability, that
represents a breach of any of the terms of this Agreement to the material
detriment of WellCare or the Corporation;


 


(b)                                 bad faith by
Executive in the performance of his duties, consisting of willful acts or willful
omissions, other than as a result of Executive’s Disability, to the material
detriment of WellCare or the Corporation.


 


(c)                                  Executive’s
conviction of, or pleading guilty or nolo contendere to, a crime that
constitutes a felony involving fraud, conversion, misappropriation, or
embezzlement under the laws of the United States or any political subdivision
thereof, which conviction has become final and non-appealable.


 


4.1.3        Good Reason.  Executive may terminate his employment under
this Agreement by giving written notice to the Corporation upon the occurrence
of any one or more of the following events (“Good Reason”):


 


(a)                                  a material
diminution during the Term in Executive’s authority, duties or
responsibilities, or any change in Executive’s title;


 


(b)                                 a material
diminution during the Term in Executive’s base salary or bonus opportunity; or


 


(c)                                  a material
breach by WellCare or the Corporation of any term of this Agreement.


 


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4.1.4        Opportunity to Cure.  Notwithstanding Sections 4.1.2 and 4. 1.3, it
shall be a condition precedent to a party’s right to terminate Executive’s
employment for Cause or Good Reason, as applicable, that (a) such party
shall have first given the other party written notice stating with reasonable
specificity the breach on which such termination is premised within 90 days
after the party providing such notice becomes aware of such breach, and (b) if
such breach is susceptible of cure or remedy, such breach has not been cured or
remedied within forty-five (45) days after receipt of such notice.


 


4.1.5        Any Other Reason.  Notwithstanding anything to the contrary
herein, the Corporation shall have the right to terminate Executive’s
employment under this Agreement at any time without Cause by giving written
notice of such termination to Executive, and Executive shall have the right to
terminate Executive’s employment under this Agreement at any time without Good
Reason by giving written notice of such termination to the Corporation.


 


4.2           Termination Date.  Except as provided in Section 4.1.1 with
respect to Executive’s death or Disability, and subject to Section 4.1.4,
any termination under Section 4.1 shall be effective upon receipt of
notice by Executive or the Corporation, as the case may be, of such termination
or upon such other later date as may be provided herein or specified by the
Corporation or Executive in the notice (the “Termination
Date”).


 


4.3           Effect of Termination.


 


4.3.1        Termination with Cause or
without Good Reason.  In the event
that Executive’s employment is terminated by the Corporation with Cause or by
Executive without Good Reason, the Corporation shall pay all Accrued
Obligations to Executive in a lump sum in cash within ten (10) days after
the Termination Date (except that any “deferred compensation”, within the
meaning of Section 409A of the Code, shall be paid at the time or times
otherwise provided under the terms of the applicable plan or arrangement).  “Accrued Obligations”
means the sum of (a) Executive’s base salary hereunder through the
Termination Date to the extent not theretofore paid, (b) the amount of any
incentive compensation, deferred compensation and other cash compensation
accrued by Executive as of the Termination Date to the extent not theretofore
paid, and (c) any vacation pay, expense reimbursements and other cash
entitlements accrued by Executive as of the Termination Date to the extent not
theretofore paid.


 


4.3.2        Termination without Cause or
with Good Reason.  In the
event that Executive’s employment terminated by the Corporation without Cause
or by Executive for Good Reason:


 


(a)                                  The Corporation
shall pay all Accrued  Obligations to
Executive in a lump sum in cash within ten (10) days of the Termination
Date (except that any “deferred compensation”, within the meaning of Section 409A
of the Code, shall become vested in full on the Termination Date, but shall be
paid at the time or times otherwise provided under the terms of the applicable
plan or arrangement);


 


(b)                                 The Corporation
shall pay to Executive, in a lump sum in cash no later than the Severance
Payment Deadline (as defined in 


 


6

















 


Section 4.3.4),
an amount equal to the sum of (i) the amount equal to Executive’s base
salary, as in effect on the Termination Date, for the period from the
Termination Date through December 31, 2009, (ii) $750,000, and (iii) an
amount equal to Executive’s target annual bonus for calendar year 2009, as set
forth in Section 2.2 above.


 


(c)                                  For the
duration of the applicable COBRA period, the Corporation shall continue to
provide medical, dental and vision care and life insurance benefits to Executive
and/or Executive’s family at least equal to those which would have been provided
to them in accordance with Section 3.2; provided, further,
that Executive agrees to elect COBRA coverage to the extent available under the
Corporation’s health insurance plans (and the Corporation shall reimburse the
cost of any premiums for such coverage through December 31, 2009 on an
after-tax basis).  Any payment or
reimbursement under this Section 4.3.2(c) that is taxable to
Executive or any of his family members shall be made (subject to the provisions
of such health care plans that may require earlier payment) by December 31
of the calendar year following the calendar year in which Executive or such
family member incurred the expense.


 


4.3.3        Termination Due to Death or
Disability.  In the
event that Executive’s employment is terminated due to Executive’s death or
Disability the Corporation shall pay all Accrued Obligations to Executive or
Executive’s estate in a lump sum in cash within ten (10) days after the
Termination Date (except that any “deferred compensation”, within the meaning
of Section 409A of the Code, shall become vested in full on the
Termination Date, but shall be paid at the time or times otherwise provided
under the terms of the applicable plan or arrangement).


 


4.3.4        Waiver and Release Agreement.  In consideration of the severance payments
and other benefits described in clauses (b) and (c) of Section 4.3.2,
to which severance payments and benefits Executive would not otherwise be
entitled, and as a precondition to Executive becoming entitled to such
severance payments and other benefits under this Agreement, Executive agrees to
execute and deliver to the Corporation within 50 days after the applicable
Termination Date a Waiver and Release Agreement in the form attached hereto as Exhibit A
without alteration or addition other than to include the date (the “Release”).  If Executive
fails to execute and deliver the Release Agreement within 50 days after the
applicable Termination Date, or if Executive revokes such Release as provided
therein, the Corporation shall have no obligation to provide any of the
severance payments and other benefits described in clauses (b) and (c) of
Section 4.3.2.  The timing of
severance payments under clause (b) of Section 4.3.2 upon Executive’s
execution and delivery of the Release shall be further governed by the
following provisions (the last date on which such payments may be made, the “Severance Payment Deadline”):


 


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(a)                                  In any case in which
the Release (and the expiration of any revocation rights provided therein)
could only become effective in a particular tax year of Executive, payments
conditioned on execution of the release shall be made within 10 days after the Release
becomes effective and such revocation rights have lapsed.


 


(b)                                 In any case in which
the Release (and the expiration of any revocation rights provided therein)
could become effective in one of two taxable years of Executive depending on
when Executive executes and delivers the Release, payments conditioned on
execution of the Release shall be made within 10 days after the Release becomes
effective and such revocation rights have lapsed, but not earlier than the
first business day of the later of such tax years.


 


4.4                                 Section 409A.


 


4.4.1                        Required
Delay For Certain Deferred Compensation and Section 409A.  In the event that any compensation with
respect to Executive’s termination is “deferred compensation” within the
meaning of Section 409A of the Code and the regulations promulgated
thereunder (“Section 409A”), the stock of
WellCare, the Corporation or any affiliate is publicly traded on an established
securities market or otherwise, and Executive is determined to be a “specified
employee,” as defined in Section 409A(a)(2)(B)(i) of the Code,
payment of such compensation shall be delayed as required by Section 409A.  Such delay shall last six (6) months
from the date of Executive’s “separation from service” (within the meaning of
Treas. Reg. Section 1.409A-1(h)) with the Corporation, except in the event
of Executive’s death.  On the first day
of the seventh month following the date of separation from service with the
Corporation, or, if earlier, Executive’s death, the Corporation will make a
catch-up payment to Executive equal to the total amount of such payments that
would have been made during the six-month period but for this Section 4.4.  Such catch-up payment shall bear simple
interest at the prime rate of interest as published by The Wall
Street Journal’s bank survey as of the first day of the six month
period, which such interest shall be paid with the catch-up payment.  Wherever payments under this Agreement are to
be made in installments, each such installment shall be deemed to be a separate
payment for purposes of Section 409A. 
Notwithstanding any provision of this Agreement to the contrary, for
purposes of any provision of this Agreement providing for the payment of any
amounts or benefits upon or following a termination of employment that are considered
deferred compensation under Section 409A, references to Executive’s “termination
of employment” (and corollary terms) with the Corporation shall be construed to
refer to Executive’s “separation from service” (within the meaning of Treas.
Reg. Section 1.409A-1(h)) with the Corporation.


 


4.4.2                        Additional
Section 409A Provisions.  It is
intended that this Agreement will comply with Section 409A, to the extent
the Agreement is subject thereto, and the Agreement shall be interpreted on a
basis consistent with such intent.  With
respect to any reimbursement or in-kind benefit arrangements of the Corporation
and its affiliates that 


 


8

















 


constitute deferred compensation for purposes of Section 409A,
except as otherwise permitted by Section 409A, the following conditions
shall be applicable: (i) the amount eligible for reimbursement, or in-kind
benefits provided, under any such arrangement in one calendar year may not
affect the amount eligible for reimbursement, or in-kind benefits to be
provided, under such arrangement in any other calendar year (except that the
health and dental plans may impose a generally applicable limit on the amount
that may be reimbursed or paid), (ii) any reimbursement must be made on or
before the last day of the calendar year following the calendar year in which
the expense was incurred, and (iii) the right to reimbursement or in-kind
benefits is not subject to liquidation or exchange for another benefit.  Whenever a payment under this Agreement
specifies a payment period with reference to a number of days (e.g., “payment
shall be made within thirty (30) days after termination of employment”), the
actual date of payment within the specified period shall be within the sole
discretion of the Corporation.


 


4.5                                 Additional
Payments.


 


4.5.1                        Gross-Up
for Excise Tax.  Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Corporation or WellCare (or any
acquiring company or its affiliate) to or for the benefit of Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional
payments required under this Section 4.5) (a “Payment”)
would be subject to the excise tax imposed by Section 4999 of the Code, or
if any interest or penalties are incurred by Executive with respect to such
excise tax (such excise tax, together with any such interest and penalties,
being hereinafter collectively referred to as the “Excise Tax”),
then Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that, after payment by
Executive of all taxes (including interest or penalties imposed with respect to
such taxes, but not including interest and penalties imposed by reason of
Executive’s failure to file timely tax returns or to pay taxes shown due on
such returns and any interest, additions, increases or penalties unrelated to
the Excise Tax or the Gross-Up Payment), including, without limitation, the
Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the Payment.  Notwithstanding the foregoing provisions of
this Section 4.5.1 in the event the amount of Payments subject to the
Excise Tax exceeds the product (the “Parachute Payment Limit”)
of 2.99 and 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
Executive’s base salary, Executive shall be treated as having waived such
rights with respect to Payments designated by Executive to the extent required
such that the aggregate amount of Payments subject to the Excise Tax is less
than the Parachute Payment Limit; provided, however, that to the
extent necessary to comply with Section 409A of the Code, the waiver will
be performed in the order in which each dollar of value subject to a Payment
reduces the amount in excess of the Parachute Payment Limit to the greatest
extent.


 


4.5.2                        Gross-Up
Determinations.  Subject to the
provisions of Section 4.5.3, below, all determinations required to be made
under this Section 4.5, including whether and when a Gross-Up Payment is
required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by a nationally 


 


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recognized accounting firm selected by
Executive and reasonably acceptable to the Corporation (the “Accounting Firm”), which shall provide detailed supporting
calculations both to the Corporation and Executive within fifteen (15) business
days of the receipt of notice from Executive that there has been a Payment, or
such earlier time as is requested by the Corporation.  All fees and expenses of the Accounting Firm
shall be borne solely by the Corporation. 
Any Gross-Up Payment, as determined pursuant to this Section 4.5,
shall be paid by the Corporation to Executive within five (5) days of the
receipt of the Accounting Firm’s determination. 
If the Accounting Firm determines that no Excise Tax is payable by
Executive, it shall furnish Executive with a written opinion that failure to
report the Excise Tax on Executive’s applicable federal income tax return would
not result in the imposition of a negligence or similar penalty.  Any good faith determination by the
Accounting Firm shall be binding upon the Corporation and Executive.  As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Corporation should have been made
(“Underpayment”), consistent with the
calculations required to be made hereunder. 
In the event that the Corporation exhausts its remedies pursuant to Section 4.5.3,
below, and Executive thereafter is required to make a payment of any Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment that
has occurred and any such Underpayment shall be promptly paid by the
Corporation to or for the benefit of Executive.


 


4.5.3                        Claims.  Executive shall notify the Corporation in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Corporation of a Gross-Up Payment.  Such notification shall be given as soon as
practicable but no later than fifteen (15) business days after Executive is
informed in writing of such claim and shall apprise the Corporation of the
nature of such claim and the date on which such claim is requested to be
paid.  Executive shall not pay such claim
prior to the expiration of the thirty (30)-day period following the date on
which Executive gives such notice to the Corporation (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due).  If the Corporation notifies
Executive in writing prior to the expiration of such period that it desires to
contest such claim, Executive shall:  (a) give
the Corporation any information reasonably requested by the Corporation
relating to such claim, (b) take such action in connection with contesting
such claim as the Corporation shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Corporation, (c) cooperate
with the Corporation in good faith in order effectively to contest such claim,
and (d) permit the Corporation to participate in any proceedings relating
to such claim; provided, however, that the Corporation shall bear
and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and
hold Executive harmless, on an after-tax basis, for any Excise Tax or income
tax (including interest and penalties with respect thereto) imposed as a result
of such representation and payment of costs and expenses.  Without limiting the foregoing provisions of
this Section 4.5.3, the Corporation shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may at its sole option, either
direct Executive to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner; and Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or 


 


10

















 


more appellate courts, as the Corporation
shall determine; provided  further, however, that if the
Corporation directs Executive to pay such claim and sue for a refund, the
Corporation shall (to the extent permitted by law) advance the amount of such
payment to Executive on an interest-free basis and shall indemnify and hold
Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such
advance; and provided, further, that any extension of the statute
of limitations relating to payment of taxes for the taxable year of Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. 
Furthermore, the Corporation’s control of the contest shall be limited
to issues with respect to which a Gross-Up Payment would be payable hereunder
and Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing authority.


 


4.5.4                        Refunds.  If, after the receipt by Executive of an
amount advanced by the Corporation pursuant to Section 4.5.3, Executive
becomes entitled to receive any refund with respect to such claim, Executive
shall (subject to the Corporation’s complying with the requirements of said Section 4.5.3)
promptly pay to the Corporation the amount of such refund (together with any
interest paid or credited thereon, after taxes applicable thereto).  If, after the receipt by Executive of an
amount advanced by the Corporation pursuant to Section 4.5.3, a determination
is made that Executive shall not be entitled to any refund with respect to such
claim and the Corporation does not notify Executive in writing of its intent to
contest such denial of refund prior to the expiration of thirty (30) days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid; and the amount of such advance shall offset, to the
extent thereof, the amount of the Gross-Up Payment required to be paid.


 


4.5.5                        Timing
of Gross-Up Payment.  Subject to the
foregoing provisions of this Section 4.5 that may require earlier payment,
any Gross-Up Payment shall be paid to or for the benefit of Employee by December 31
of the calendar year following the calendar year in which the Excise Tax is
remitted, or, if no Excise Tax is remitted, by December 31 of the calendar
year following the calendar year in which there is a final and nonappealable
settlement or other resolution of an audit or litigation relating to the Excise
Tax.


 


4.6                                 Non-Exclusivity
of Rights.  Nothing in this Agreement
shall prevent or limit Executive’s continuing or future participation in any
plan, program, policy or practice provided by the Corporation or its
subsidiaries and for which Executive may qualify, nor shall anything herein
limit or otherwise affect such rights as Executive may have under any other
contract or agreement with the Corporation or its subsidiaries at or subsequent
to the Termination Date, which shall be payable in accordance with such plan,
policy, practice or program or contract or agreement, except as explicitly
modified by this Agreement.


 


4.7                                 No
Set-Off or Mitigation.  The
Corporation’s obligation to make the payments provided for in this Agreement
and otherwise to perform its obligations hereunder shall not be affected by any
setoff, counterclaim, recoupment, defense, or other claim, right or action that
the Corporation may have against Executive or others, except to the extent of
the mitigation and setoff provisions provided for in this Agreement.  In no event shall Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to 


 


11

















 


Executive under any of the provisions of this
Agreement and such amounts shall not he reduced whether or not Executive
obtains other employment.


 


ARTICLE 5


 


RESTRICTIVE COVENANTS


 


5.1                                 Confidential
Information.


 


5.1.1                        Obligation
to Maintain Confidentiality. 
Executive acknowledges that, by reason of Executive’s employment by the
Corporation, the Executive will have access to confidential information
(collectively, “Confidential Information”) of
WellCare, the Corporation and their respective subsidiaries (collectively, the “WellCare Companies”). 
Executive acknowledges that such Confidential Information is a valuable
and unique asset of the WellCare Companies and covenants that, both during and
after the Term, Executive will not disclose any Confidential Information to any
Person (except as Executive’s duties as a director, officer or employee of WellCare
and the Corporation require) without the prior written authorization of the
Board.  The obligation of confidentiality
imposed by this Section 5.1 shall not apply to Confidential Information
that otherwise becomes known to the public through no act of Executive in
breach of this Agreement or which is required to be disclosed by court order,
applicable law or regulatory requirements, nor shall it apply to Executive’s
disclosure of Confidential Information to his attorneys and advisors in connection
with a dispute between Executive and a WellCare Company.


 


5.1.2                        WellCare
Company Property.  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 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 a WellCare Company that is collected by the Executive
shall be delivered promptly to such WellCare Company without request by it upon
termination of Executive’s employment. 
For purposes of this Section 5.1.2, “Intellectual
Property” shall mean patents, copyrights, trademarks, trade dress,
trade secrets, other such rights, and any applications therefor.


 


5.2                                 Inventions.  Executive is hereby retained in a capacity
such that Executive’s responsibilities may include the making of technical and
managerial contributions of value to the WellCare Companies.  Executive hereby assigns to the applicable
WellCare Company all rights, title and interest in such contributions and
inventions made or conceived by Executive alone or jointly with others during
the Term that relates 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. 
Executive shall promptly and fully disclose all such contributions and
inventions to the Corporation and assist the Corporation or any other WellCare
Company, as the case may be, in 


 


12

















 


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 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 Executive for any WellCare
Company.


 


5.3                                 Unfair
Competition.


 


5.3.1                        Scope
of Covenant.  Executive agrees that
during the Term, and for the one-year period beginning on the Termination Date,
Executive shall not, directly or indirectly, for himself or on behalf of or in
conjunction with any other Person, without the prior written consent of the
Board:


 


(a)                                  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 within any state in which a WellCare Company is doing business at the
time Executive ceases to be employed by the Corporation that are in direct
competition with the benefits or services provided by such WellCare Company in
such state;


 


(b)                                 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 the WellCare Group for a
period in excess of six months; provided, however, that the
provisions of this clause (b) shall not apply to any member of Executive’s
immediate family;


 


(c)                                  call upon any Person
who is at the time Executive ceases to be employed by the Corporation, or who
was at any time during the one year period prior to the date Executive ceases
to be employed by the Corporation, a provider, customer or agent of any
WellCare Company for the purpose of soliciting or selling benefits or services
that would violate clause (a) above; or


 


(d)                                 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 5.3.1 shall be construed to
preclude Executive from making any investment in the securities of any business
enterprise whether or not engaged 


 


13

















 


in competition with any
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.


 


5.3.2                        Reasonableness.  It is agreed by the parties that the
foregoing covenants in this Section 5.3 impose a reasonable restraint on
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.  Executive
acknowledges that the covenants in this Section 5.3 shall not prevent 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.


 


5.3.3                        Severability.  The covenants in this Section 5.3 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.


 


5.3.4                        Enforcement
by the Corporation not Limited.  All
of the covenants in this Section 5.3 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 Executive against any WellCare Company, whether
predicated in this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Corporation or WellCare of such covenants.


 


5.4                                 Breach
of Restrictive Covenants.  The
parties agree that a breach or violation of this Article 5 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.


 


ARTICLE 6


 


ARBITRATION


 


6.1                                 General.  Except for an action for equitable relief
that is permitted to be sought pursuant to Section 5.4, any controversy,
dispute, or claim between the parties to this Agreement, including any claim
arising out of, in connection with, or in relation to the formation,
interpretation, performance or breach of this Agreement shall be settled exclusively
by arbitration, before a single arbitrator, in accordance with this Article 6
and the then most applicable rules of the American Arbitration
Association.  Judgment upon any award
rendered by the arbitrator may be entered by any state or federal court having
jurisdiction thereof.  Such arbitration
shall be administered by the American Arbitration Association.  Arbitration shall be the exclusive remedy for
determining any such dispute, regardless of its nature.  Notwithstanding the foregoing, either party
may in an appropriate matter apply to a court for provisional relief,


 


14
















 


including a temporary restraining order or a
preliminary injunction, on the ground that the award to which the applicant may
be entitled in arbitration may be rendered ineffectual without provisional
relief.  Unless mutually agreed by the
parties otherwise, any arbitration shall take place in Tampa, Florida.


 


6.2           Selection of Arbitrator.  In the event the parties are unable to agree
upon an arbitrator, the parties shall select a single arbitrator from a list of
nine arbitrators drawn by the parties at random from the “Independent” (or “Gold
Card”) list of retired judges or, at the option of Executive, from a list of
nine persons (which shall be retired judges or corporate or litigation
attorneys experienced in executive employment agreements) provided by the
office of the American Arbitration Association having jurisdiction over Tampa,
Florida.  If the parties are unable to
agree upon an arbitrator from the list so drawn, then the parties shall each
strike names alternately from the list with the first to strike being
determined by lot.  After each party has
used four strikes, the remaining name on the list shall be the arbitrator.  If such person is unable to serve for any reason,
the parties shall repeat this process until an arbitrator is selected.


 


6.3           Applicability of Arbitration; Remedial Authority.  This agreement to resolve any disputes by
binding arbitration shall extend to claims against any parent, subsidiary or
affiliate of each party, and, when acting within such capacity, any officer,
director, stockholder, employee or agent of each party, or of any of the above,
and shall apply as well to claims arising out of state and federal statutes and
local ordinances as well as to claims arising under the common law.  In the event of a dispute subject to this
paragraph the parties shall be entitled to reasonable discovery subject to the
discretion of the arbitrator.  The
remedial authority of the arbitrator (which shall include the right to grant
injunctive or other equitable relief) shall be the same as, but no greater
than, would be the remedial power of a court having jurisdiction over the
parties and their dispute.  The
arbitrator shall, upon an appropriate motion, dismiss any claim without an
evidentiary hearing if the party bringing the motion establishes that he or it
would be entitled to summary judgment if the matter had been pursued in court
litigation.  In the event of a conflict
between the applicable rules of the American Arbitration Association and
these procedures, the provisions of these procedures shall govern.


 


6.4           Fees and Expenses.  Any filing or administrative fees shall be
borne initially by the party requesting arbitration.  Notwithstanding the foregoing, the
Corporation shall reimburse Executive for all legal fees and expenses that Executive
may reasonably incur as a result of any contest by the Corporation, Executive
or others regarding the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance thereof (including
as a result of any contest by Executive about the amount of any payment
pursuant to this Agreement), so long as Executive substantially prevails on any
material claim in the dispute.  In no
event will the Executive be responsible for the Corporation’s or WellCare’s
fees or expenses arising out of any such contest.


 


6.5           Award Final and Binding.  The arbitrator shall render an award and
written opinion, and the award shall be final and binding upon the
parties.  If any of the provisions of
this paragraph, or of this Agreement, are determined to be unlawful or
otherwise unenforceable, in whole or in part, such determination shall not
affect the validity of the remainder of this Agreement, and this Agreement
shall be reformed to the extent necessary to carry out its 


 


15

















 


provisions to the greatest extent possible and to
insure that the resolution of all conflicts between the parties, including
those arising out of statutory claims, shall be resolved by neutral, binding
arbitration.  If a court should find that
the arbitration provisions of this Agreement are not absolutely binding, then
the parties intend any arbitration decision and award to be fully admissible in
evidence in any subsequent action, given great weight by any finder of fact and
treated as determinative to the maximum extent permitted by law.


 


ARTICLE
7


 


MISCELLANEOUS


 


7.1           Amendments.  The provisions of this Agreement may not be
waived, altered, amended or repealed in whole or in part except by the signed
written consent of the parties sought to be bound by such waiver, alteration,
amendment or repeal.


 


7.2           Entire Agreement.  This Agreement, the Indemnification
Agreement, and any agreements pertaining to restricted stock of WellCare
granted to Executive and any options to purchase WellCare common stock granted
to Executive constitute the total and complete agreement of the parties with
respect to the subject matter hereof and thereof and supersede all prior and
contemporaneous understandings and agreements heretofore made and there are no
other representations, understandings or agreements.  For the avoidance of doubt, this Agreement
shall, from and after the Effective Date, supersede the Existing Agreement.


 


7.3           Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.


 


7.4           Severability.  Each term, covenant, condition or provision
of this Agreement shall be viewed as separate and distinct, and in the event
that any such term, covenant, condition or provision shall be deemed by an
arbitrator or a court of competent jurisdiction to be invalid or unenforceable,
the court or arbitrator finding such invalidity or unenforceability shall modify
or reform this Agreement to give as much effect as possible to the terms and
provisions of this Agreement.  Any term
or provision which cannot be so modified or reformed shall be deleted and the
remaining terms and provisions shall continue in full force and effect.


 


7.5           Waiver or Delay.  The failure or delay on the part of the
Corporation or Executive to exercise any right or remedy, power or privilege
hereunder shall not operate as a waiver thereof.  A waiver, to be effective, must be in writing
and signed by the party making the waiver. 
A written waiver of default shall not operate as a waiver of any other
default or of the same type of default on a future occasion.


 


7.6           Successors and Assigns.  This Agreement shall be binding on and shall
inure to the benefit of the parties to it and their respective heirs, legal
representatives, successors and assigns, except as otherwise provided
herein.  Neither this Agreement nor any
of the rights, benefits, obligations or duties hereunder may be assigned or
transferred by Executive except by operation of law.  Without the prior written consent of
Executive, this Agreement shall not be assigned by the Corporation.  The Corporation will require any successor
(whether direct or 


 


16

















 


indirect by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Corporation to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken place.


 


7.7           Necessary Acts.  Each party to this Agreement shall perform
any further acts and execute and deliver any additional agreements, assignments
or documents that may be reasonably necessary to carry out the provisions or to
effectuate the purpose of this Agreement.


 


7.8           Governing Law.  This Agreement shall be governed by and
interpreted, construed and enforced in accordance with the laws of the State of
Delaware.


 


7.9           Notices.  All notices, requests, demands and other
communications to be given under this Agreement shall be in writing and shall
be deemed to have been duly given on the date of service, if personally served
on the party to whom notice is to be given, or 48 hours after mailing, if
mailed to the party to whom notice is to be given by certified or registered
mail, return receipt requested, postage prepaid, and properly addressed to the
party at his address set forth as follows or any other address that any party
may designate by written notice to the other parties:


 


	
  To Executive:

  	
   

  	
  Thomas
  F. O’Neil III

  
	
   

  	
   

  	
  On
  file with the Corporation

  
	
   

  	
   

  	
   

  
	
  WellCare or the
  Corporation:

  	
   

  	
  WellCare
  Health Plans, Inc.

  
	
   

  	
   

  	
  8735
  Henderson Road

  
	
   

  	
   

  	
  Renaissance
  Two

  
	
   

  	
   

  	
  Tampa,
  FL 33634

  
	
   

  	
   

  	
  Attn:
  Chief Executive Officer

  
	
   

  	
   

  	
  Facsimile:
  (813) 290-6210

  



 


7.10         Headings and Captions.  The headings and captions used herein are
solely for the purpose of reference only and are not to be considered as
construing or interpreting the provisions of this Agreement.


 


7.11         Construction.  All terms and definitions contained herein
shall be construed in such a manner that shall give effect to the fullest
extent possible to the express or implied intent of the parties hereby.


 


7.12         Counsel.  Executive has been advised by WellCare and
the Corporation that he should consider seeking the advice of counsel in
connection with the execution of this Agreement and the other agreements
contemplated hereby and Executive has had an opportunity to do so.  Executive has read and understands this
Agreement, and has sought the advice of counsel to the extent he has determined
appropriate.  The Corporation shall
reimburse Executive for the reasonable fees and expenses of Executive’s counsel(s) in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the other agreements contemplated hereby.


 


17

















 


7.13         Withholding of Compensation.  Executive hereby agrees that the Corporation
may deduct and withhold from the compensation or other amounts payable to
Executive hereunder or otherwise in connection with Executive’s employment any
amounts required to be deducted and withheld by the Corporation under the
provisions of any applicable Federal, state and local statute, law, regulation,
ordinance or order.


 


[Remainder of Page Intentionally Left Blank]


 


18

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered as of the date first above
written.


 


	
   

  	
  WELLCARE

  
	
   

  	
   

  
	
   

  	
  WELLCARE HEALTH PLANS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Heath Schiesser

  
	
   

  	
   

  	
  Name:

  	
  Heath Schiesser

  
	
   

  	
   

  	
  Title:

  	
  President & CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  COMPREHENSIVE HEALTH

  
	
   

  	
  MANAGEMENT, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Heath Schiesser

  
	
   

  	
   

  	
  Name:

  	
  Heath Schiesser

  
	
   

  	
   

  	
  Title:

  	
  President & CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas F. O’Neil III

  
	
   

  	
  Thomas F. O’Neil III

  



 


19

















 


EXHIBIT A


 


WAIVER AND RELEASE AGREEMENT


 


THIS WAIVER AND RELEASE AGREEMENT (this “Release”) is entered into as of [TO BE DETERMINED AT
TERMINATION OF EMPLOYMENT] (the “Effective Date”),
by Thomas F. O’Neil III (the “Executive”) in
consideration of severance pay and benefits (the “Severance
Payment”) provided to the Executive by Comprehensive Health
Management, Inc., a Florida corporation (the “Corporation”),
pursuant to clauses (b) and (c) of Section 4.3.2 of the
Employment Agreement by and between the Corporation and the Executive (the “Employment Agreement”).


 


1.             Waiver
and Release.  Subject to the
last sentence of the first paragraph of this Section 1, the Executive, on
his own behalf and on behalf of his heirs, executors, administrators, attorneys
and assigns, hereby unconditionally and irrevocably releases, waives and
forever discharges the Corporation and each of its affiliates, parents,
successors, predecessors, and the subsidiaries, directors, owners, members,
shareholders, officers, agents, and employees of the Corporation and its
affiliates, parents, successors, predecessors, and subsidiaries (collectively,
all of the foregoing are referred to as the “Employer”),
from any and all causes of action, claims and damages, including attorneys’
fees, whether known or unknown, foreseen or unforeseen, presently asserted or
otherwise arising through the date of his signing of this Release, concerning
his employment or separation from employment. 
Subject to the last sentence of the first paragraph of this Section 1,
this Release includes, but is not limited to, any payments, benefits or damages
arising under any federal law (including, but not limited to, Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Employee Retirement Income Security Act of 1974, the Americans with
Disabilities Act, Executive Order 11246, the Family and Medical Leave Act, and
the Worker Adjustment and Retraining Notification Act, each as amended); any
claim arising under any state or local laws, ordinances or regulations
(including, but not limited to, any state or local laws, ordinances or regulations
requiring that advance notice be given of certain workforce reductions); and
any claim arising under any common law principle or public policy, including,
but not limited to, all suits in tort or contract, such as wrongful
termination, defamation, emotional distress, invasion of privacy or loss of
consortium.  Notwithstanding any other
provision of this Release to the contrary, this Release does not encompass, and
Executive does not release, waive or discharge, the obligations of WellCare
and/or the Corporation (a) to make the payments and provide the other
benefits contemplated by the Employment Agreement, or (b) under any
restricted stock agreement, option agreement or other agreement pertaining to
Executive’s equity ownership, or (c) under any indemnification or similar
agreement with Executive.


 


The Executive understands that by signing this
Release, he is not waiving any claims or administrative charges which cannot be
waived by law.  He is waiving, however,
any right to monetary recovery or individual relief should any federal, state
or local agency (including the Equal Employment Opportunity Commission) pursue
any claim on his behalf arising out of or related to his employment with and/or
separation from employment with the Corporation.


 


20

















 


The Executive further agrees without any reservation
whatsoever, never to sue the Employer or become a party to a lawsuit on the
basis of any and all claims of any type lawfully and validly released in this Release.


 


2.             Acknowledgments.  The Executive is signing this Release
knowingly and voluntarily.  He
acknowledges that:


 


(a)                                  He is hereby advised in
writing to consult an attorney before signing this Release Agreement;


 


(b)                                 He has relied solely on his
own judgment and/or that of his attorney regarding the consideration for and
the terms of this Release and is signing this Release Agreement knowingly and
voluntarily of his own free will;


 


(c)                                  He is not entitled to the
Severance Payment unless he agrees to and honors the terms of this Release;


 


(d)                                 He has been given at least
twenty-one (21) calendar days to consider this Release, or he or she expressly
waives his right to have at least twenty-one (21) days to consider this Release;


 


(e)                                  He may revoke this Release
within seven (7) calendar days after signing it by submitting a written
notice of revocation to the Employer.  He
further understands that this Release is not effective or enforceable until
after the seven (7) day period of revocation has expired without
revocation, and that if he or she revokes this Release within the seven (7) day
revocation period, he will not receive the Severance Pay;


 


(f)                                    He has read and understands
the Release and further understands that, subject to the limitations contained
herein, it includes a general release of any and all known and unknown,
foreseen or unforeseen claims presently asserted or otherwise arising through
the date of his signing of this Release that he may have against the Employer;
and


 


(g)                                 No statements made or conduct
by the Employer has in any way coerced or unduly influenced him or her to
execute this Release.


 


3.             No
Admission of Liability.  This Release does not constitute an admission
of liability or wrongdoing on the part of the Employer, the Employer does not
admit there has been any wrongdoing whatsoever against the Executive, and the
Employer expressly denies that any wrongdoing has occurred.


 


4.             Entire
Agreement.  There are
no other agreements of any nature between the Employer and the Executive with
respect to the matters discussed in this Release Agreement, 


 


21

















 


except as expressly stated
herein, and in signing this Release, the Executive is not relying on any
agreements or representations, except those expressly contained in this
Release.


 


5.             Execution.  It is not necessary that the Employer sign
this Release following the Executive’s full and complete execution of it for it
to become fully effective and enforceable.


 


6.             Severability.  If any provision of this Release is found,
held or deemed by a court of competent jurisdiction to be void, unlawful or
unenforceable under any applicable statute or controlling law, the remainder of
this Release shall continue in full force and effect.


 


7.             Governing
Law.  This Release shall be governed
by the laws of the State of Florida, excluding the choice of law rules thereof.


 


8.             Headings.  Section and subsection headings
contained in this Release are inserted for the convenience of reference
only.  Section and subsection
headings shall not be deemed to be a part of this Release for any purpose, and
they shall not in any way define or affect the meaning, construction or scope
of any of the provisions hereof.


 


IN WITNESS WHEREOF, the undersigned has duly
executed this Agreement as of the day and year first herein above written.


 


	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THOMAS F. O’NEIL III

  



 


22