SEPARATION AND RELEASE AGREEMENT
Exhibit 99.7
THIS
AGREEMENT (the “Agreement”) is
entered and made effective the 31st
day of
March, 2008, by and between D.
XXXX XXXXXX (the “Individual”) and COASTAL CAPITAL
ACQUISITION
CORP., a Georgia corporation (the “Company”) (collectively, the
“Parties”).
WHEREAS,
the Individual was
engaged by the Company as its president and chief executive officer and as
a
director;
WHEREAS,
the Individual’s
relationship with the Company has been terminated by mutual agreement and
the
Company offered this Agreement to Individual;
WHEREAS,
the Individual and
the Company desire to sever their relationship in a way that will preserve
the
goodwill which exists between them and to otherwise settle any and all
claims;
NOW
THEREFORE, for and in
consideration of the payment, covenants and release described below, and
other
good and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged, the Individual and the Company agree as follows:
1. Termination. The
parties acknowledge and agree that the Individual’s engagement as officer and
director of the Company will be voluntarily terminated effective at 11:59
p.m.
on March 31, 2008. The Individual does hereby resign as an officer
and director of the Company effective at such time.
2. Waiver
of
Payments. Except for the payments to be made pursuant to this
Agreement, Individual agrees that the Company owes no additional amounts
to
Individual for wages, back pay, severance pay, vacation and/or accrued sick
leave days, or any other benefits or payments. This Agreement is
intended to and does fully and finally settle and resolve any and all claims
of
whatever kind and nature between the parties.
3. Distribution
of
Shares. The Company shall cause to be distributed within 60
days from the date of this Agreement, 500,000 shares of the Company’s common
stock (the “Shares”) (based upon a closing market price of $0.006 per share on
March 28, 2008 and having an aggregate approximate value of
$3,000). The Company shall instruct its transfer agent to issue
certificates representing the Shares, registered in the name of the Xxxxxx
Capital Partners, LLC, which shares shall be restricted as to transfer or
sale. If the registered owner provides the Company and the transfer
agent with an opinion of counsel, which opinion of counsel shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions, to the effect that the Shares to be sold or transferred may
be
sold or transferred pursuant to an exemption from registration, or the
Individual provides the Company with reasonable assurances that such Shares
may
be sold under Rule 144(k), the Company shall permit the transfer of the Shares
and instruct its transfer agent to issue one or more certificates in such
name
and in such denominations as specified by the Individual.
4. Confidential
Information. The Individual acknowledges that during his
engagement with the Company, Individual had access to and was provided with
(1)
certain confidential and proprietary information which constitutes trade
secrets
as defined in the Georgia Trade Secrets Act of 1990 (the “Act”) of the Company,
and (2) certain confidential and proprietary information of the Company which
may not constitute trade secrets as defined under the Act (collectively,
the
“Confidential Information”). Such Confidential Information includes,
but is not limited to, business plans or models, financial statements, patient
information pertaining to third party payors or employers or other payors,
procedures, methods of operation, policies, current business opportunities,
and
any other agreements or contracts, and all other information, knowledge and
know-how, which is not generally known in the Company’s business, and all other
trade secrets and such other information as the Company may designate as
confidential. The Confidential Information provided by the Company is the
sole
and exclusive property of the Company. Individual acknowledges that
Individual and his heirs, successors and assigns have no right to or interest
in
said Confidential Information.
5. Use
of Confidential
Information. Individual acknowledges that the Company has a
legitimate business interest in protecting the Confidential
Information. Therefore, the Individual agrees to hold the Company’s
Confidential Information in trust and confidence and not to disclose to any
third party without the prior written consent of the Company such Confidential
Information, whether in tangible or intangible form. The Individual
further agrees that he shall not use the Confidential Information for his
personal benefit or for the benefit of any third party. The
Individual agrees that all records and equipment and other materials relating
in
any way to Confidential Information shall be and remain the sole property
of the
Company during and after the end of Individual’s engagement with the Company.
The Individual agrees to promptly return to the Company all materials and
all
copies or tangible embodiments of materials involving any Confidential
Information in Individual’s possession or control which belongs to the Company
as soon as practicable after the date hereof. The Individual agrees
to maintain the confidentiality of the Company’s Confidential Information for a
period of three (3) years following the execution of this Agreement that
does
not rise to the level of a Trade Secret, and shall maintain the confidentiality
of Confidential Information that does rise to the level of a Trade Secret
in
accordance with the provisions of the Act.
6. Public
Information. Notwithstanding any provision herein to the
contrary, the obligations of the Individual under this Agreement shall not
apply
with respect to any information that becomes properly known generally to
the
public; that was properly known by the Individual before his engagement with
the
Company and was not divulged by the Company in anticipation of such engagement,
that is developed by the Individual through entirely independent efforts
after
termination of his engagement; that Individual obtains from an independent
source having a bona fide right to use and disclose such information; that
is
required to be disclosed by law, except to the extent eligible for special
treatment under an appropriate protective order; that is approved for
unrestricted use by an express written authorization; or that falls within
the
category of being part of the Individual’s aptitude, skill, dexterity, manual or
mental ability, or such other subjective knowledge as Individual obtained
during
his engagement with the Company.
7. Company
Insurance. The Company shall maintain its current officers and
directors liability policy or a substantially similar policy, for at least
a
three year period commencing with the Closing Date. The Company shall
permit reasonable access by the Individual to the liability insurance records
of
the Company to permit the Individual to verify the compliance of this provision
and shall provide the Individual with advance written notice of no less than
30
days of its intention to seek a replacement policy. The Company may
obtain a different policy without the advance written consent of the Individual,
but only if the terms of such different policy are not materially different
from
the existing policy (including the issuer of the policy).
8. Nondisparagement. From
and after the date of this Agreement: (a) the Individual agrees not to make
any
denigrating, defamatory, or negative statements about the Company, its officers,
directors, shareholders, consultants, employees, customers, prospective
customers, business operations, products, or services; and (b) the Company,
on
behalf of itself and its officers and directors, agrees not to make any
denigrating, defamatory, or negative statements about the Individual; provided,
however, that this provision shall not apply to any statements made by the
Individual, the Company, their officers, directors or attorneys in the course
of
any litigation This provision is subject to and shall be construed in
accordance with all applicable federal, state or local laws, statutes, and
regulations.
9. Injunctive
Relief. The Individual hereby agrees that in the event of a
breach or threatened breach of any provision of Sections 4, 5, 6, or 8,
irreparable harm and damage will be done to the Company. Accordingly, Individual
agrees that the Company shall be entitled to pursue all remedies available
to it
in law or equity, including seeking an injunction or restraining order
restraining and enjoining such breach or threatened breach by Individual,
and
all other remedies which shall be available to the Company, in law or in
equity.
10. Attorneys’
Fees. If any suit, action, or proceeding is brought to enforce
any term or provision of this Agreement, the prevailing party shall be entitled
to recover reasonable attorneys’ fees, costs, and expenses incurred, in addition
to any other relief to which such party may be legally entitled.
11. Releases
and
Filings. The Individual shall have the right to review before
issuance any press releases, SEC or NASDAQ filings, or any other public
statements with respect to the transactions contemplated hereby. The
Company shall consult with the Individual in connection with any such press
release and filing prior to its release and the Individual shall be provided
with a copy thereof.
12. Release
by
Individual. Except for the obligations of the Company
hereunder, and in consideration of the Shares to be distributed to the
Individual by the Company pursuant to this Agreement, Individual, on behalf
of
himself and his heirs, executors, administrators, assigns, agents and
successors-in-interest, does hereby UNCONDITIONALLY RELEASE AND DISCHARGE
the
Company, its direct and indirect subsidiaries, and any other corporation
in
which the Company or any of its direct and indirect subsidiary corporations
holds an interest, and their predecessors, successors, and their respective
agents, assigns, legal representatives, employees, officers, trustees and
agents
(hereinafter collectively referred to as the “Company Releasees”) from any and
all claims, liabilities, demands and causes of action, of whatever kind and
nature, known or unknown, fixed or contingent, which Individual has, ever
has
had, or in the future may have against the Company Releasees for any reason,
and
which are based on acts or omissions occurring up to and including the date
of
this Agreement, including, but not limited to, his engagement with the Company,
the cessation of such engagement or any act, omission, occurrence or other
matter related to such engagement or cessation of engagement, and Individual
does hereby covenant not to make any demand or file any lawsuit or assert
any
claim against the Company Releasees in any judicial, administrative or other
forum. This is a full and complete release of any and all claims and
potential claims and such claims and the covenant not to xxx includes, but
is
not limited to, all claims arising under any federal, state or local laws
or
regulations and any common law claims or threats of recovery. Notwithstanding
anything to the contrary, however, the Parties expressly acknowledge and
agree
that Individual is not releasing or giving up his right to enforce the terms
of
this Agreement or to seek indemnity from the Company with respect to any
claims
of third parties against the Individual in his capacity as officer or director
of the Company. Excluded from this Agreement are any claims that
cannot be released or waived by law and any third party claims against the
Individual.
13. Release
by
Company. Except for the obligations of the Individual
hereunder, and in consideration of the Individual obligations pursuant to
this
Agreement, Company, on behalf of itself, any of its direct and indirect
subsidiary corporations in which it holds an interest, and their predecessors,
successors, and their respective agents, assigns, legal representatives,
employees, officers, trustees and agents its officers, directors, agents
and
successors-in-interest, does hereby UNCONDITIONALLY RELEASE AND DISCHARGE
the
Individual and his heirs, executors, administrators, assigns, agents and
successors-in-interest (hereinafter collectively referred to as the “Individual
Releasees”) from any and all claims, liabilities, demands and causes of action,
of whatever kind and nature, known or unknown, fixed or contingent, which
the
Company has, ever has had, or in the future may have against the Individual
Releasees for any reason, and which are based on acts or omissions occurring
up
to and including the date of this Agreement, including, but not limited to,
the
Individual’s engagement with the Company, the cessation of such engagement or
any act, omission, occurrence or other matter related to such engagement
or
cessation of engagement, and Company does hereby covenant not to make any
demand
or file any lawsuit or assert any claim against the Individual Releasees
in any
judicial, administrative or other forum. This is a full and complete
release of any and all claims and potential claims and such claims and the
covenant not to xxx includes, but is not limited to, all claims arising under
any federal, state or local laws or regulations and any common law claims
or
threats of recovery. Notwithstanding anything to the contrary, however, the
Parties expressly acknowledge and agree that the Company is not releasing
or
giving up its right to enforce the terms of this Agreement. Excluded
from this Agreement are any claims which cannot be released or waived by
law.
14. Acknowledgements
by the
Individual. The Individual expressly acknowledges and agrees
that Individual has:
(a)
been advised to consult an attorney before signing this Agreement and has
had an
opportunity to consult with an attorney of his choice;
(b)
read this Agreement in its entirety, understands its terms and knowingly
and
voluntarily consents to its terms and conditions; and
(c)
Individual fully understands that this Agreement is final and binding, that
it
contains a full, final and complete release of potentially valuable claims,
and
that the only promise or representations Individual has relied upon in executing
this Agreement are those specifically contained in this Agreement.
15. No
Admission. This Agreement is not intended to constitute and
should not be construed as constituting an admission of fault, wrongdoing
or
liability by either party, but rather reflects the desire of the parties
to
resolve fairly and amicably any past, present, or future claims.
16. Cooperation. The
Individual agrees, upon request, to cooperate fully with the Company in
defending against various claims, lawsuits or matters before any administrative
agencies by providing assistance including, but not limited to, preparing
for
and giving truthful deposition and/or witness testimony.
17. Choice
of
Law. This Agreement shall be interpreted, construed and
enforced in all respects pursuant to federal and Georgia law. In the
event any provision of this Agreement is held to be illegal, invalid or
unenforceable under the present or future laws, such provision shall in no
way
affect the legality, validity and enforceability of the remaining provisions,
which shall remain in full force and effect as if the illegal, invalid or
unenforceable provision did not exist. This Agreement is binding upon
each party’s successors and assigns.
18. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties. Any prior agreements, contracts, agreements, promises,
negotiations, or representations, either oral or written, regarding Individual’s
engagement and/or otherwise, are of no force or effect. This
Agreement cannot be modified, altered, or amended in any way except in writing
and by the agreement of the parties hereto. This Agreement may not be
assigned by Individual.
INDIVIDUAL:
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_/s/
X.
Xxxx Graham__________________
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D. Xxxx Xxxxxx
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THE
COMPANY:
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_/s/
Xxxx
Radcliffe____________________
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Its:
Chief Operating Officer
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