1
EXHIBIT 10.10
STATE OF NORTH CAROLINA RELEASE AND SETTLEMENT
AGREEMENT
COUNTY OF DURHAM
This Release and Settlement Agreement is made and entered
into this 6th day of November, 1996 by and between Xxxxxx X.
Xxxxx, M.D. ("Xx. Xxxxx"), Xxxxxxx X. Xxxxx, M.D., M.B.A. ("Xx.
Xxxxx"), and Coastal Physician Group, Inc. ("Coastal") on the one
hand and Xxxxxxx X. Xxxxxx ("Xxxxxx") on the other hand
(collectively the "Parties");
WHEREAS, the Parties are currently engaged in litigation in
the General Court of Justice, Superior Court Division, of Durham
County, North Carolina in a case styled XXXXXX X. XXXXX, ET XX X.
XXXXXX XXXXXXX XXXXXXX, XXXXXX X. PIEDMONT, XXXXXXX X. XXXXXX AND
COASTAL PHYSICIAN GROUP, INC.; 96 CvS 2748 (the "Lawsuit"); and
WHEREAS, Xxxxxx has resigned his position as a member of the
board of directors of Coastal (the "Board"), as a director of any
subsidiaries of Coastal on which he may serve, as a member of any
Committees of the Board or of boards of directors of subsidiaries
of Coastal on which he may serve, as trustee (or similar
position) with any benefit plan maintained by or for employees of
Coastal or its subsidiaries, and be is resigning as an employee
and officer of Coastal or any of its subsidiaries upon execution
of this Release and Settlement Agreement (the "Agreement"); and
WHEREAS, Xx. Xxxxx and Xx. Xxxxx, on behalf of themselves
and in their capacities as representatives of Coastal desire to
compromise and settle the Lawsuit with Xxxxxx and Xxxxxx desires
to compromise and settle the Lawsuit with Xx. Xxxxx and Xx.
Xxxxx; and
WHEREAS, as part of this settlement the Parties also desire
to agree upon compensation and benefits to be paid to Xxxxxx in
lieu of the compensation and benefits called for under his
contract of employment; and
2
WHEREAS, the Parties have agreed to enter into this
Agreement to accomplish their joint goal of settling and
resolving all claims against Xxxxxx in the lawsuit and any claims
Xxxxxx might have with respect to his contract of employment.
NOW, THEREFORE, in consideration of the mutual covenants and
promises set forth herein, the adequacy and sufficiency of which
is hereby acknowledged, the undersigned parties hereto agree as
follows:
1. INITIAL PAYMENT: Coastal shall pay Xxxxxx the sum of
One Hundred Thousand Dollars ($100,000.00) simultaneously with
the execution of this Agreement;
2. CONSULTING AGREEMENT: Xxxxxx shall serve as a
consultant to Coastal for the period beginning November 1, 1996
and ending March 31, 1997. During such period, Xxxxxx shall be
available at reasonable times to render and provide consulting or
advisory services to Coastal, including Board, Coastal's Plan
Manager, or the President and Chief Executive Officer of Coastal,
from time to time by telephone, facsimile, or letter. In light
of the fact that Xxxxxx served as Coastal's Chief Financial
Officer throughout the entire period of Coastal's fiscal quarter
ended September 30, 1996, such services shall include but not be
limited to Xxxxxx'x finalization and signature as Chief Financial
Officer of Coastal's Third Quarter Form 10-Q, and Xxxxxx'x review
of and comment on Coastal's 1996 Form 10-K. Upon reasonable
notice, and for reasonable periods of time, both in duration and
frequency, Xxxxxx shall be available to provide such other
consulting or advisory services at the offices of Coastal or at
such other places and locations as Coastal may reasonably
require, with reimbursement for any reasonable travel expenses.
Coastal acknowledges that Xxxxxx plans to investigate other
business opportunities, to become involved in other
3
businesses and investments and to travel with his family during
such five month period. Coastal further acknowledges that Xxxxxx
will not be required or requested to be available to provide
consulting or advisory services on any given day, for substantial
parts of any given week, or during any given week during the five
month period; provided, however, that Xxxxxx shall not be
unavailable to render consulting services for a period of more
than ten business days of any calendar month. Xxxxxx agrees that
he will not refuse a reasonable request of Coastal, to provide
consulting or advisory services in accordance with the provision
of this Agreement. Coastal acknowledges a substantial portion of
Xxxxxx'x duties hereunder will be to provide information and/or
advice in connection with transitional matters. Coastal and
Xxxxxx further agree that each will use their best efforts to
accommodate the needs and schedules each of the other. Xxxxxx
shall receive, as compensation for services rendered as a
consultant, the sum of Two Hundred Thousand Dollars ($200,000.00)
to be paid by Coastal in equal monthly installments of Twenty
Thousand Dollars ($20,000.00) each over the five (5) month period
of the consultancy and then in equal monthly installments of
Twenty Thousand Dollars ($20,000.00) each over the five (5) month
period following the conclusion of the consultancy. Coastal
shall make the first such installment payment on November 15,
1996 and continue thereafter to make succeeding payments on the
fifteenth day of each successive month until August 15, 1997.
Xxxxxx shall be engaged as an independent contractor by Coastal
and shall not be construed to be an employee of Coastal for any
purpose nor shall he be entitled to any benefits as an employee
of Coastal except as specifically provided herein. Xxxxxx, as an
independent contractor, shall not be an agent of Coastal for any
purpose and shall
4
have no right to bind Coastal by contract or otherwise except and
only to the extent specifically authorized by the Board.
If any dispute shall occur between the parties, then Coastal
shall make all payments required hereunder to Xxxxxx
notwithstanding the pendency of such dispute. In the event it
shall be finally determined that Xxxxxx breached his obligations
under this section of this Agreement, however, then Coastal shall
be entitled to recover such payments from Xxxxxx, as well as
interest on such amounts at the rate of eighteen percent per
annum from the date payment was made to Xxxxxx to the date it is
recovered, plus the reasonable attorneys' fees (based upon
regular hourly rates) incurred by Coastal in recovering such
payments.
If Coastal shall determine that Xxxxxx is in default under
the consulting obligations of this paragraph 2, which
determination shall require the affirmative vote of a majority of
the members of the board, Coastal shall provide written notice
thereof to Xxxxxx, which notice shall specifically describe the
actions, events and circumstances constituting such default, and
Xxxxxx shall have ten days after receipt of such notice to cure
such default, in which case, this agreement (and Coastal's
obligations to make payments hereunder) shall remain in full
force and effect if such default is cured within such ten day
period.
Further, Xxxxxx'x agreement to provide consulting services
and Coastal's agreement to pay compensation therefor shall
constitute a separate agreement, and if Xxxxxx defaults hereunder
(and fails to cure such default within the applicable cure
period), then Coastal's sole remedy shall be to recover payments
made after such default (and interest thereon at the rate of
eighteen (18) percent per annum and reasonable attorneys' fees
incurred in recovering such payments) and Coastal shall
5
not have any right to recover sums paid to Xxxxxx prior to such
default or reduce or recover payments made pursuant to paragraphs
1 and 3 hereof.
3. ADDITIONAL PAYMENT: Coastal shall pay Xxxxxx an amount
determined in accordance with the following provisions:
(a) PURPOSE. Subject to the terms hereof, Xxxxxx shall
have the right to receive an amount equal to any appreciation
occurring from and after the Initial Date (hereinafter defined)
in 50,000 shares of Coastal's common stock (presently traded on
the New York Stock Exchange) and these provisions shall be
interpreted with a view to accomplishing such purpose.
(b) DEFINITIONS. Terms used herein shall have the
following meanings: (i) the term "Initial Price" shall mean the
price per share for Coastal's common shares at the close of
business of the New York Stock Exchange (as reflected on the New
York Stock Exchange Composite Tape) on the next trading day (the
"Initial Date") after release of the jointly approved press
release attached hereto; (ii) the term "Sales Price" shall mean
the average price per share for Coastal's common shares at the
close of business of the New York Stock Exchange (as reflected on
the New York Stock Exchange Composite Tape, or if those shares
are not traded at that time on the New York Stock Exchange, the
comparable standard for the trading market on which those shares
are then traded) on the ten trading days next preceding the date
(the "Sales Date") on which delivery of notice of exercise of the
rights granted hereunder occurs.
(c) EXERCISE. Xxxxxx shall have the right to exercise the
rights granted hereunder at any time and from time to time during
the three-year period beginning on the date hereof and ending at
12:00 p.m. EST on the third anniversary of this Agreement. Such
rights may be exercised by
6
delivering written notice thereof (which notice shall specify the
number of shares with respect to which such rights are being
exercise) by facsimile (Fax 000-000-0000) to Coastal's chief
executive officer or its general counsel with copy thereof being
delivered promptly thereafter by certified mail addressed to
Coastal, X.X. Xxx 00000, Xxxxxx, X.X. 00000 to the attention of
such officer or officers.
(d) AMOUNT. The amount payable to Xxxxxx hereunder shall
be determined in accordance with the following provisions: (i)
the Initial Price shall be subtracted from the Sales Price to
determine the per share appreciation which has occurred (ii) the
per share appreciation shall then be multiplied by the number of
shares with respect to which Xxxxxx has exercised his rights
hereunder and (iii) the resulting sum shall be the amount payable
to Xxxxxx hereunder. Further, such amount shall be paid to
Xxxxxx within three days after receipt of the notice exercising
such rights. To the extent not exercised, such rights shall
remain in full force and effect, and upon subsequent exercise
thereof by Xxxxxx as hereinabove provided, the amount payable to
Xxxxxx shall again be determined in accordance with the foregoing
provisions.
(e) ADJUSTMENT. In the event Coastal's outstanding common
shares shall be subdivided (split), combined (reserve split), by
reclassification or otherwise, or in the event of any special
dividend payable on such shares of Coastal stock, the Initial
Price and the number of shares with respect to which the rights
granted hereunder exist shall be proportionately adjusted to
accomplish the purposes hereof.
(f) REORGANIZATIONS. If at any time during the three year
term hereof there shall be a capital reorganization of Coastal's
common shares, then as part of such reorganization, lawful
7
provision shall be made so that Xxxxxx'x rights hereunder shall
be protected in a manner which will accomplish the purposes
hereof.
(g) MERGER, BUSINESS COMBINATION. If a merger,
consolidation, share exchange or business combination occurs
which results in Coastal's common shares being acquired by
another corporation (whether for cash, securities or other
consideration), or if substantially all of Coastal's assets and
properties are sold to another person, the following provisions
shall be controlling for purposes hereof: (i) Xxxxxx shall be
deemed to have exercised his remaining rights on the closing date
of such transaction, (ii) the amount payable to Xxxxxx shall be
determined and paid within three days after such closing date and
(iii) Xxxxxx shall not thereafter have any further right to
receive payments based upon appreciation in Coastal's common
shares.
(h) INFORMATION. Upon the occurrence of each adjustment or
readjustment pursuant to the provisions contained herein, Coastal
at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish
Xxxxxx with information setting forth such adjustment or
readjustment and showing in detail the facts upon which such
adjustment or readjustment is based.
4. RELEASE BY XXXXXX: Xxxxxx does hereby relinquish,
remise, release and forever discharge Xx. Xxxxx, Xx. Xxxxx, and
Coastal and their respective attorneys, agents, heirs, assigns,
servants, officers, directors, shareholders, representatives, and
any and all other persons, parties or corporations that might be
in privity with them, whether named herein or not, of and from
all liabilities, costs, claims, expenses, attorney's fees,
demands, damages, losses, causes of action, suits and all
incidental and consequential damages of whatever kind, and
however arising, which Xxxxxx
8
may now have or claim to have, or might hereafter have or claim
to have, whether known or unknown, matured or unmatured, from the
beginning of time through the date of this Agreement, including,
but not limited to, matters arising out of or related to the
claims that were asserted, or could have been asserted, in the
Lawsuit, and any claims for compensation or benefits arising out
of or related to his contract of employment.
5. RELEASE BY XX. XXXXX AND XX. XXXXX: Xx. Xxxxx and Xx.
Xxxxx do hereby relinquish, remise, release and forever discharge
Xxxxxx and his respective attorneys, agents, heirs, assigns,
servants, employees, representatives, and any and al other
persons or parties or corporations that might be in privity with
them, whether named herein or not, of and from all liabilities,
costs, claims, expenses, attorney's fees, demands, damages,
losses, causes of action, suits and all incidental and
consequential damages of whatever kind, and however arising which
Xx. Xxxxx and Xx. Xxxxx, may now have or claim to have, or might
hereafter have or claim to have, whether known or unknown,
matured or unmatured, from the beginning of time through the date
of this Agreement, including, but not limited to, maters arising
out of or related to the claims that were asserted, or could have
been asserted, in the Lawsuit.
6. RELEASE BY COASTAL: Coastal, acting on behalf of its
predecessors, successors and assigns, and its present and former
officers, directors, employees, representatives, and agents, does
hereby relinquish, remise, release and forever discharge Xxxxxx
and his respective attorneys, agents, heirs, assigns, servants,
representatives, and any and all other persons, or parties that
might be in privity with them, whether named herein or not, of
and from all liabilities, costs, claims, expenses, attorney's
fees, demands, damages, losses, causes of action, suits and all
incidental and
9
consequential damages of whatever kind, and however arising,
which Coastal may now have or claim to have, or might hereafter
have or claim to have, whether known or unknown, matured or
unmatured, from the beginning of time through the date of this
Agreement, including, but not limited to, matters arising out of
or related to the claims that were asserted, or could have been
asserted, in the Lawsuit. Provided, however, that this release
shall not include claims against Xxxxxx by Coastal for
intentional acts (including gross negligence) or material
misrepresentations with respect to the financial condition or
results of operations of Coastal, its subsidiaries or affiliates.
7. SHARES OWNED: Nothing herein shall in any way affect
any shares in Coastal owned by Xxxxxx as of the date hereof.
Coastal shall deliver to Xxxxxx certificates evidencing ownership
in the shares deliverable to him in lieu of payments for services
as a director, a committee member or service as chairman of any
committee. Xxxxxx hereby waives any options, vested or unvested,
described in Section 4(c) of his contract of employment.
8. PERSONAL PROPERTY: Xxxxxx shall be entitled to remove
from his office at Coastal, in addition to items which were
purchased by personal funds of Xxxxxx, the following items of
personal property: (1) two lamps, (2) a rug, and (3) a computer,
provided however, that in the event the value of the items
removed exceeds Three Thousand Dollars ($3,000.00), Xxxxxx shall
pay to Coastal a sum equal to such excess.
9. INSURANCE: Coastal agrees to use its best efforts to
continue to provide coverage for Xxxxxx under the executive
protection insurance policies for officers and directors
previously associated with Coastal so long as Coastal does not
incur additional premium cost therefor.
10
10. INDEMNITY: Coastal hereby indemnifies Xxxxxx and
agrees to hold him harmless from and against all damages, claims,
losses, liabilities and expenses (including reasonable attorneys'
fees) arising from or in any way connected with Xxxxxx'x service
as an officer, director, employee, consultant, agent or
representative of Coastal to the maximum extent permitted under
Section 145 of the General Corporation Law of the State of
Delaware and Article VIII of Coastal's by-laws (as presently
existing or as hereafter amended to broaden or increase such
indemnification), which shall continue in full force and effect
notwithstanding any resignation by Xxxxxx as an officer,
director, employee, consultant, agent or representative of
Coastal. Further, if Xxxxxx incurs expenses (including
reasonable attorneys' fees) in defending any civil, criminal,
administrative or investigative action, suit or proceeding,
Coastal shall promptly and forthwith advance Xxxxxx funds to pay
such expenses in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking from Xxxxxx to
repay such amount if it shall ultimately be determined that he is
not entitled to indemnification by Coastal pursuant to Delaware
law and pursuant to Coastal's bylaws in effect at the time of the
execution of this Agreement. Further, these indemnifications
provisions shall remain in full force and effect, notwithstanding
any insurance coverage afforded to Xxxxxx with respect to such
matters. For purposes of this agreement reasonable attorneys'
fees shall be determined with reference to regular hourly billing
rates for time spent by the attorney on the matters for which
attorneys' fees may be paid or reimbursed.
11. DEFAULT BY COASTAL: If Coastal fails to make any
payment required to be made by this Agreement, Xxxxxx may give
notice of default to Coastal which may, within ten (10) days
following the giving of such notice, cure any default. If
Coastal fails to cure any default as
11
provided herein, the payment for which Coastal is in default
shall accrue interest at the rate of eighteen percent (18%) per
annum, simple interest, from the tenth day following the giving
of the default notice until paid. Upon commencement of
litigation related to a default, the prevailing party in any such
litigation shall be entitled to recover its costs and expenses,
including reasonable attorneys' fees (determined by reference to
such attorney's regular hourly billing rates) from the party no
prevailing in the litigation. For the purposes of this
paragraph, the term "prevailing party" means that party who has a
final, non-appealable judgment entered in its favor by a court of
competent jurisdiction.
12. DISMISSAL. Upon final approval of this Agreement by
the Court, Xx. Xxxxx and Xx. Xxxxx, individually and on behalf of
Coastal, shall file a voluntary dismissal with prejudice as to
all direct and derivative claims asserted against Xxxxxx in the
Lawsuit.
13. NO ADMISSION OF LIABILITY: The Parties hereto
understand and agree that this Agreement constitutes a compromise
of disputed claims, and that the payments and agreements
contained herein are not to be construed in any way to constitute
an admission of liability of the Parties.
14. FINAL APPROVAL OF COURT. It is expressly agreed and
understood that the effectiveness of this Agreement is expressly
conditioned on the final approval of this Agreement by the Court
and shall have no force or effect, nor be binding upon any Party
hereto until such time as final approval of the Court is given.
The Parties agree that, as soon as practicable following
execution of this Agreement (and not later than five business
days in any event), they will jointly move the Court to
preliminary approve the Agreement, to authorize the giving of
notice of the Settlement to
12
shareholders (if deemed necessary by the Court), to set a hearing
for the final approval of the Agreement, and to grant final
approval of the Agreement.
Notwithstanding the foregoing paragraph, the Parties shall
conduct themselves as though the Agreement is in full force and
effect upon execution and perform all obligations required
thereby. In the event the Court does not grant final approval of
the Agreement prior to January 31, 1997, this Agreement shall be
void and of no effect and the parties shall revert to the status
quo ante as of the date of the Agreement although Xxxxxx shall
not be restored to his positions as either an officer or employee
of Coastal. In the event the Court does not grant final approval
of this Agreement, Coastal shall be deemed to have satisfied its
obligations to Xxxxxx under his contact of employment by paying
Xxxxxx the sum of $450,000 in equal monthly installments over a
period of eighteen months, with the amount of each installment
determined by deducting from the sum of $450,000 the amounts
previously paid pursuant to this Agreement and dividing the
remainder by 18. The first such installment shall be due within
ten days after the entry of a final Order by the Court denying
approval of the settlement, with the remaining seventeen payments
due on the last day of each succeeding month until paid in full.
Likewise, in the event the Court does not grant final approval of
this agreement, Xxxxxx shall be deemed to have satisfied his
obligations under his contract of employment by providing the
consulting services described in paragraph 2 above during the
ninety day period after October 31, 1996, as contemplated by his
contract of employment.
15. ENTIRE CONSIDERATION AND AGREEMENT. This document sets
forth the entire consideration for this Agreement, which
consideration is contractual and not a mere recital. All
agreements and understandings between the parties are embodied
and expressed herein.
13
16. NO OTHER PROMISES OR INDUCEMENT. The undersigned
parties expressly warrant that no promise or inducement has been
offered except as set forth herein. This Agreement is executed
without reliance upon any statement or representation of any
person or party, or their representatives. Acceptance of the
consideration set forth herein is in full accord and satisfaction
of each of the causes of action which are disputed or could have
been disputed herein.
17. VOLUNTARY EXECUTION. The Parties enter into this
Agreement voluntarily, upon advice of counsel and of their own
accord and represent and warrant that they are under no duress
and coercion in entering said agreement. The Parties further
represent and warrant that they have reviewed the Agreement and
agree in all respects to its terms.
18. BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of and shall be binding upon the undersigned parties
and their respective heirs, executors, administrators, trustees,
successors and/or assigns.
19. WARRANTY OF OWNERSHIP OF CLAIMS. All Parties warrant
and represent that they are the sole holder and owner of each and
every claim, cause of action, right or chose in action relating
to the matters that are asserted or could have been asserted by
the Parties in the Lawsuit and that no assignment, in whole or in
part, of these claims, causes or rights has been made to any
other party.
20. CONFIDENTIALITY.
(a) It is expressly agreed that the terms and
conditions of the Agreement, are, and shall remain, confidential,
and shall not be revealed or disclosed by any party hereto except
(1) with the express written consent of all Parties hereto, (2)
upon the order of a court of competent jurisdiction, (3) as may
be necessary to enforce the terms of this Agreement, (4) as may
be required
14
by law, (5) as may be required by any regulatory agencies
exercising oversight over any of the parties, or (6) as set forth
in the jointly approved press release attached hereto as Exhibit
A.
(b) Promptly after execution of the Agreement, Coastal
shall issue the jointly approved press release attached hereto as
Exhibit A.
21. NORTH CAROLINA LAW. This Agreement shall be construed
under and governed by the laws of the State of North Carolina.
All Parties consent to the jurisdiction of the General Court of
Justice of in Wake County, North Carolina for the enforcement of
this Agreement.
22. INTEGRATION AND MERGER. This Agreement embodies,
merges and integrates all prior and current agreements and
understandings of the parties with regard to the settlement of
the claims asserted or which could have been asserted by either
Party in the above styled and numbered causes and may not be
clarified, modified, changed or amended, except in writing,
signed by each of the signatories hereto. The terms of the
Protective Order shall survive this Agreement.
The parties hereto have set their hands and seals this the 6th
day of November, 1996.
/S/ XXXXXX X. XXXXX, M.D.
Xxxxxx X. Xxxxx, M.D.
/S/ XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx, M.D., M.B.A.
COASTAL PHYSICIAN GROUP, INC.
By:/S/ XXXXX X. XXXXXX
Its:President & CEO
/S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
15
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
I, Xxxxxx X. Xxxxx, a Notary Public of the County and State
aforesaid, certify that XXXXXX X. XXXXX, M.D. personally appeared
before me this day and acknowledged the execution of the
foregoing instrument.
WITNESS my hand and official stamp or seal, this 6th day of
November 1996.
/S/ XXXXXX X. XXXXX
Notary Public
My Commission Expires:
3-16-00
[NOTARY SEAL]
00
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXXXX
I, Xxxxxx X. Xxxxx, a Notary Public of the County and State
aforesaid, certify that XXXXXXX X. XXXXX, M.D., M.B.A. personally
appeared before me this day and acknowledged the execution of the
foregoing instrument.
WITNESS my hand and official stamp or seal, this 6th day of
November 1996.
/S/ XXXXXX X. XXXXX
Notary Public
My Commission Expires:
3-16-00
[NOTARY SEAL]
00
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXXXX
I, Xxxxxx X. Xxxxx, a Notary Public of the County and State
aforesaid, certify that Xxxxx X. Xxxxxx personally came before me
this day and acknowledged that he is President & CEO of COASTAL
PHYSICIAN GROUP, INC., a Delaware corporation, and that, by
authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its President,
sealed with its corporate seal.
WITNESS my hand and notarial seal, this 6th day of November,
1996.
/S/ XXXXXX X. XXXXX
Notary Public
My Commission Expires:
3-16-00
[NOTARY SEAL]
00
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXXXX
I, Xxxxxx X. Xxxxx, a Notary Public of the County and State
aforesaid, certify that XXXXXXX X. XXXXXX personally appeared
before me this day and acknowledged the execution of the
foregoing instrument.
WITNESS my hand and official stamp or seal, this 6th day of
November 1996.
/S/ XXXXXX X. XXXXX
Notary Public
My Commission Expires:
3-16-00
[NOTARY SEAL]
