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ALTERED, AMENDED OR REPEALED IN WHOLE OR IN PART EXCEPT BY THE SIGNED WRITTEN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