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Exhibit 10.11
TERMINATION AND RELEASE AGREEMENT
This Termination and Release Agreement (the "Agreement") is made effective
as of the 31st day of July, 1997 (the "Effective Date") by and between Medical
Group Management, Inc., a New Jersey corporation, located at Xxx Xxxxxxxx Xxxx,
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000 ("MGM") and Physician Healthcare Plan of New
Jersey, Inc., a New Jersey corporation, located at 0000 Xxxxx Xxxxx,
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000 ("PHPNJ").
BACKGROUND
WHEREAS, MGM and PHPNJ have previously entered into that certain
Management Agreement dated as of September 1, 1994, as amended by letter
agreement dated February 20, 1997 (the "Management Agreement"), pursuant to
which MGM provides certain administrative, management and consulting services
to PHPNJ;
WHEREAS, PHPNJ and Medigroup of New Jersey, Inc. ("Medigroup"), Medigroup,
Inc. and Blue Cross and Blue Shield of New Jersey, Inc. have entered into (1)
that certain Assignment and Transfer Agreement dated June 24, 1997 (the
"Assignment Agreement") pursuant to which Medigroup will, subject to
ratification by PHPNJ shareholders, acquire certain group contracts and
provider agreements from PHPNJ, and (2) effective July 1, 1997, a Management
Services Agreement whereby Medigroup assumed responsibility for providing
management services to PHPNJ for a period of up to six (6) months pending
approvals of the acquisition by PHPNJ shareholders and regulatory authorities;
and
WHEREAS, PHPNJ and MGM desire to terminate their Management Agreement in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the obligations
undertaken by the parties hereto, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Termination
Except as otherwise set forth in this Agreement, all agreements,
understandings, terms and conditions set forth in the Management Agreement
shall terminate as of the Effective Date of this Agreement and such Management
Agreement shall be null and void and have no further legal effect whatsoever.
2. Release
Except for any obligations due under Paragraph 3 hereof, MGM and PHPNJ,
together with their shareholders, Affiliates and assigns, agree to forever
release and discharge each other and their respective shareholders, successors,
assigns and Affiliates from any and all liabilities, rights, obligations,
debts, suits, agreements, licenses, demands or claims of any kind or nature,
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which either party and their shareholders, successors, assigns, and Affiliates
ever had, now have or hereafter may have or shall have against the other party,
related to or arising under the Management Agreement. Notwithstanding anything
contained herein to the contrary, either MGM or PHPNJ may file a third party
complaint against the other for the limited purpose of joining the other as a
defendant in any pending action brought by a third party non-shareholder
plaintiff but in no event shall MGM or PHPNJ, as the case may be, bring a
claim, cross claim, counterclaim or otherwise seek monetary damages or other
remedies against the other on its own behalf. For purposes of this Agreement,
"Affiliates" of any party shall mean any other entity controlling, controlled
by or under common control with such specified party.
3. Outstanding Obligations
(a) Within ten (10) working days of the date of execution of this
Agreement, MGM shall perform all of its duties and satisfy all of its
obligations under the Management Agreement which were incurred up through the
Effective Date. The parties agree that all payments owed each by the other as
of the Effective Date shall be reviewed and confirmed by the independent
auditors of PHPNJ, and provided such confirmation is forthcoming, shall be paid
in full no later than thirty (30) days after the Effective Date. Such payments
shall include, without limitation, (i) unpaid management fees, (ii) unpaid
office rental expense, (iii) surplus funds maintained by MGM after giving
effect to all payments due and owing third parties, and (iv) the net purchase
price of furniture and fixtures to be sold by PHPNJ to MGM.
(b) As of the date of execution of this Agreement, MGM shall no longer be
a signatory on the Investment Account(s) or the Operating Account(s)
established pursuant to the Management Agreement between MGM and PHPNJ.
(c) MGM shall provide storage space consisting of approximately 100
square feet at 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx 00000, or such other
location as the parties may agree, for PHPNJ books and records until the later
of (i) the closing date of the Assignment, or (ii) thirty (30) days after the
surrender by PHPNJ of its Certificate of Authority. PHPNJ shall pay MGM for
such storage at a rate of eighteen dollars ($18.00) per square foot if at the
Lenox Drive location, or such other agreed-upon rate for any alternate
location, and PHPNJ, or Medigroup with the prior consent of PHPNJ, shall have
access to such space on an as needed basis.
(d) In light of the comprehensive nature of MGM's services to PHPNJ under
the Management Agreement, MGM agrees to make itself reasonably available to
assist PHPNJ in the future in the event a matter arises wherein PHPNJ requires
the reasonable assistance of MGM as a former provider of services under the
Management Agreement. Upon request from MGM, PHPNJ shall pay MGM reasonable
compensation for such assistance.
(e) As of the Effective Date, that certain month-to-month lease by and
between
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MGM, as landlord, and PHPNJ, as tenant, covering approximately 9351 square feet
on the first floor of 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx, is hereby
terminated, and PHPNJ shall have no current or future obligation whatsoever
under that lease.
(f) MGM acknowledges that it and its affiliates have entered into various
office equipment rental agreements and equipment maintenance agreements in
connection with the management services it provided to PHPNJ. MGM further
acknowledges and agrees that it and its affiliates will perform their
respective obligations under said agreements and that PHPNJ has no obligations
under those agreement.
4. Waiver of Termination Fee
Notwithstanding the provisions of Paragraph 3 hereof and in partial
consideration for the premises set forth herein, MGM hereby waives its right,
if any, to receive, or forgives PHPNJ's obligation, if any, to pay, (i) any
Termination Fee, under section 8.4 of the Management Agreement or (ii) any
payment under section 7.4 of the Management Agreement relating to a Sale or
Change of Control Event, as defined therein.
5. Transition
MGM and PHPNJ agree to abide by the provisions in section 8.6 of the
Management Agreement. This provision shall survive termination of this
Agreement.
6. Confidentiality
Except as required by law or regulation, or as necessary to defend
against suit, MGM and PHPNJ agree to abide by the provisions in section 12 of
the Management Agreement pertaining to the disclosure of Confidential
Information following the termination of the Management Agreement. At PHPNJ's
request, MGM shall return to PHPNJ all copies of PHPNJ confidential documents.
This provision shall survive termination of this Agreement.
7. Non-Competition
MGM and PHPNJ agree that any restrictions on the right of MGM or any of
its Affiliates to own, manage, operate, control or participate in the
ownership, management, operation or control of, or be employed or retained by
any organization or entity competitive with PHPNJ under section 13 of the
Management Agreement following the termination of the Management Agreement
shall be null and void as of the Effective Date.
8. Maintenance of Existence
MGM agrees that it shall maintain its corporate existence until the
earlier of (i) that date upon which PHPNJ liquidates and/or dissolves its
corporate existence, or (ii) the second anniversary date of the Closing of the
acquisition contemplated by the Assignment Agreement (the "Dissolution
Date"). Each of PHPNJ and MGM further agree to maintain all existing policies
of professional liability insurance and Directors and Officers liability
insurance until the Dissolution Date.
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9. Announcements
Neither party will originate any publicity, news release or other public
announcement related to the Management Agreement or this Agreement, or any
amendment hereto, without the prior written approval of the other party hereto.
This provision shall survive termination of this Agreement.
10. Notices
All notices, requests, demands or other communications called for in this
Agreement shall be in writing and addressed to the parties at the addresses set
forth below and shall be deemed to have been given (i) when personally delivered
(ii) if mailed by registered or certified U.S. mail, postage prepaid, return
receipt requested, when receipt is signed for at the address shown below or
(iii) when receipt is signed for at the address shown below when sent by
overnight courier services. Any party may change the address to which notices
are given by giving notice in the manner provided for herein.
Notices to MGM shall be addressed as follows:
MEDICAL GROUP MANAGEMENT, INC.
Xxx Xxxxxxxx Xxxx
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
Notices to PHPNJ shall be addressed as follows:
PHYSICIAN HEALTH CARE PLAN OF NEW JERSEY, INC.
Princeton Pike Corporate Center
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chairman of the Board
11. Entire Agreement
This Agreement represents the entire Agreement between the parties and
supersedes all prior understandings and agreements, including the Management
Agreement, except those provisions of the Management Agreement that are
specifically ratified herein. This Agreement may not be modified except by an
instrument in writing signed by the parties hereto.
12. Severability
Should any clause of this Agreement be found unenforceable, it shall be
deemed to be severable, and the balance of the Agreement shall continue in full
force as if the unenforceable clause had never been made a part hereof.
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13. Governing Law
This Agreement and all actions taken hereunder shall be governed by the
laws of the State of New Jersey without regard to principles of conflicts of
law.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
on this 13th day of August, 1997 effective as of the date first written above.
MEDICAL GROUP MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title:
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PHYSICIAN HEALTHCARE PLAN
OF NEW JERSEY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, M.D.
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Title:
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