EXHIBIT 10.10
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is made and entered into
this 30th day of December, 1994, and is effective as of the 1st day of January,
1995 (the "Effective Date") by and between Xxxxxx X. Xxxx, an individual
currently residing at 0000 X.X. 00xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
("Cass") and Hospital Staffing Services, Inc., a Florida corporation whose
principal address is 0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000 ("HSSI" or the "Company").
WHEREAS, Cass, on the one hand, and HSSI and Cardinal Nursing and Home
Care, Inc. ("Cardinal"), on the other hand, have entered into an Assets Purchase
Agreement (the "Purchase Agreement") of even date herewith which provides, INTER
ALIA, that the consideration paid for the "Assets," as defined in the Purchase
Agreement, shall be set forth more fully in a settlement agreement; and
WHEREAS, Cass and HSSI have previously entered into a Termination and
Benefits Agreement dated June 1, 1991 (the "Benefits Agreement") pursuant to
which Cass is entitled to certain benefits upon his termination of employment
with the Company; and
WHEREAS, Cass has certain outstanding obligations to the Company in the
form of a Loan in the amount of $100,000 (the "Loan"); and
WHEREAS, as an inducement for the parties to enter into this Agreement,
Cass has proposed that his base compensation be reduced; and
WHEREAS, the parties believe it is in the best interest of the Company
and its shareholders to enter into the Purchase Agreement and satisfy its
obligations to Cass pursuant to the Benefits Agreement as set forth herein; and
WHEREAS, Cass continues to be employed at will by HSSI as its Chairman
of the Board, Chief Executive Officer and President.
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. RECITALS. The above recitals are true, correct, and are
herein incorporated by reference.
2. SATISFACTION OF BENEFITS AGREEMENT.
In consideration of and full satisfaction for the obligations
of the Company pursuant to the Benefits Agreement, Cass shall receive the
following:
a. The Assets described in the Purchase Agreement
inclusive of the intangible and fixed assets and goodwill, the value of which is
$185,000, which is the fair market value of the Assets.
b. Forgiveness of a shareholder loan to Cass by the
Company in the outstanding amount of $100,000 (inclusive of any accrued but
unpaid interest).
c. A promissory note in the principal amount of Seven
Hundred Fifteen Thousand and No/100 Dollars ($715,000), the form set forth on
Exhibit A hereto.
3. CONTINUING EMPLOYMENT OF CASS BY HSSI AND REDUCTION OF BASE
SALARY. As an inducement for the Company to enter into this Settlement Agreement
Cass shall continue as an at-will employee of the Company except that the base
compensation for Cass shall be reduced from $330,000 to $175,000 effective
January 1, 1995. At all times as Cass shall be an employee of the Company, Cass
shall be entitled to receive all other benefits that he was receiving or was
entitled to receive thirty (30) days prior to the Effective Date including
without limitation, an automobile allowance, life and health insurance benefits,
and certain retirement benefits (based upon an annual base salary of
$175,000.00), as set forth more fully on Exhibit B.
4. MODIFICATION OF BENEFITS AGREEMENT.
a. Except as set forth in this Section 4, the Benefits
Agreement is terminated, and Cass hereby releases the Company from all its
duties and obligations pursuant to the Benefits Agreement, and Cass shall be
entitled to no further rights thereunder.
b. The Company hereby releases Cass from all his duties
and obligations pursuant to the Benefits Agreement and the Company shall be
entitled to no further rights thereunder.
c. The provisions of Section 3, 4, 5 and 6 of the
Benefits Agreement shall remain in full force and effect; provided, however,
that Section 4(a) of the Benefits Agreement shall be amended to provide that the
restricted area shall be limited to any county in the United States where HSSI
or any of its subsidiaries are engaged in the homecare business as may be
conducted by HSSI or any of its subsidiaries as of the date of this Agreement or
during the Term hereof EXCEPT that the restricted area shall not relate to
Florida (the "Permitted Area"). If, during such one (1) year period after
termination, HSSI or any of its subsidiaries are no longer engaged in the
homecare business within a previously restricted area, for purposes of this
Section, that restricted area is waived.
x. Xxxx shall be given no less than three (3) months'
prior written notice of termination by the Board of Directors of the Company
during which time Cass shall be entitled to receive all compensation and
benefits to which Cass was entitled prior to such notice of termination. To the
extent that such three (3) month notice is not provided to Cass, Cass shall be
paid compensation for Ninety (90) days, based upon an annual base salary of One
Hundred Seventy Five Thousand and No/100 Dollars ($175,000.00), as set forth
more fully in Section 2(a) above.
e. Upon the termination of Cass' employment with the
Company, for whatever reason, Cass shall be entitled to receive such health,
disability and life benefits as Cass was receiving prior to such termination,
for one (1) year from the effective date of termination. Cass shall not be
entitled to receive any other compensation or benefits in connection with such
termination.
f. In the event of Cass' death or "disability," as
hereinafter defined,
(i) Cass' spouse and/or dependents shall be
entitled to receive the benefits set forth in Section 4(e) hereof for a
period of one (1) year or, in the event Cass' termination occurred
prior to his death or disability, his spouse and/or dependents shall be
entitled to such benefits for the remainder of the one (1) year period
from the date of his termination; and
(ii) Cass' estate shall receive an aggregate of
three (3) months (or in the event Cass' termination occurred without
proper notice as provided in Section 4(d) and Cass dies subsequent to
such termination his spouse and/or his dependents shall be entitled to
the remainder of the ninety (90) day salary which the Company has not
previously paid to Cass. salary that would have been paid to Cass had
proper notice prior to termination been provided to Cass.
g. For purposes of Section 4(f), "disability" means such
mental impairment which would require a guardian to be appointed for
Cass.
5. DEVOTION OF TIME. The purchase by Cass of the Assets
notwithstanding, Cass shall devote substantially all of his time and efforts to
the business of HSSI and its subsidiaries.
6. EXECUTION OF THE PURCHASE AGREEMENT. This Agreement is
subject to the approval and execution of all parties to the Purchase Agreement
and which approval specifically includes the Board of Directors of HSSI
(excluding Cass).
7. SEVERABILITY. In the event any provisions contained herein
shall for any reason be held to be inapplicable, invalid, illegal or
unenforceable in any respect, such inapplicability, invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement and this
Agreement shall be construed as if such provision had never been contained
herein.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties hereto and may not be terminated, except in
accordance with its terms, or amended, except in a prior writing executed by the
parties hereto.
9. WAIVER. Any waiver by any party of any provision of this
Agreement or breach thereof shall not operate or be construed as a waiver of any
other provision of subsequent breach thereof.
10. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida and shall be binding upon
and inure to the benefit of the respective successors and assigns of the parties
hereto.
11. NOTICES. All notices, requests, demands, declarations, and
other communication required or permitted to be given hereunder shall be in
writing and shall be given and deemed to have been duly given, if delivered in
person, given by prepaid telegram or mailed first class, postage prepaid,
registered or certified mail, or delivered to an independent local or overnight
courier directed to the respective addresses set forth below or to such other
address as may be directed by any party in written notice to the other party;
If to HSSI: 0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxxxx
With a copy to: Xxxxxxxxxxx & Xxxxxxxx
Miami Center - Suite 2000
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
If to Cass: 0000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
With a copy to: Atlas, Xxxxxxxx, Trop & Borkson, P.A.
000 X. Xxx Xxxx, Xxxx., Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
12. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
13. HEADINGS. The headings used in this Agreement are solely for
convenience of reference and shall not affect its meaning or interpretation in
any way.
14. ATTORNEYS' FEES. In connection with any litigation arising
out of the enforcement of this Agreement, or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, from the other party if such party was an adverse party to such
litigation.
15. MISCELLANEOUS PROVISIONS.
(a) The obligations of HSSI and Cass are absolute and
unconditional, except as may be otherwise provided for herein and therein, and
independent.
(b) Cass shall execute such documents, if necessary, for
HSSI to obtain term life insurance on his life to cover the payment of the
benefits set forth in this Agreement.
(c) This Agreement constitutes the entire understanding
between the parties hereto and shall not be terminated, except in accordance
with their terms, or amended, except in writing executed by the parties hereto
and thereto.
(d) This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
THE PARTIES TO THIS AGREEMENT HAVE READ THE AGREEMENT, UNDERSTAND ITS TERMS AND
CONDITIONS, HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT LEGAL COUNSEL
OF THEIR OWN CHOICE AND AGREE TO BE BOUND TO ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WITNESSES: HOSPITAL STAFFING SERVICES, INC.,
a Florida corporation
/s/ XXXXXXX X. XXXXXX By: /s/ XXXXXX XXXXXXXXXXX
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Name: Xxxxxx Xxxxxxxxxxx
Its: Vice President
/s/ XXXX XXXXX /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
