SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and
entered into as of Monday, May 5, 1997 by and between Integrated Health
Services, Inc. (referred to herein as "IHS") , on the one hand, and Coram
Healthcare Company (referred to herein as "Coram"), on the other hand.
W I T N E S S E T H:
WHEREAS, on October 19, 1996, Coram and IHS entered into an "Agreement
and Plan of Merger" ("Merger Agreement");
WHEREAS, on March 30, 1997, Coram and IHS executed a letter agreement
amending the Merger Agreement;
WHEREAS, by letter dated April 4, 1997 IHS advised Coram that it was
terminating the March 30, 1997 letter agreement and terminating the Merger
Agreement;
WHEREAS, certain disputes have arisen between IHS and Coram concerning
their respective rights and liabilities arising out of the actual or
contemplated merger between IHS and Coram, including but not limited to those
arising out of the negotiations, drafting, execution, amendment and/or
termination of that contemplated merger and various related agreements,
including without limitation the Merger Agreement and March 30, 1997 letter
agreement (hereinafter referred to as "the dispute");
WHEREAS, IHS and Coram desire to compromise, settle and release any and
all claims, whether known or unknown, arising out of the dispute;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto agree as follows:
1. Payment of Money. Upon complete execution of this Agreement, IHS
agrees to pay to "Coram Healthcare Corporation" $21 million by wire transfer.
IHS will make good faith efforts to accomplish such wire transfer on or before
5:00 p.m. (eastern daylight time), Monday, May 5, 1997.
2. Mutual Release and Convenant Not to Xxx.
(a) IHS, for itself, its predecessors, successors, parent entities,
subsidiaries, affiliates, related entities of any nature, as well as on behalf
of their respective officers, directors, employees, heirs, executors,
administrators, agents and assigns, hereby forever releases, waives, discharges
and covenants not to xxx Xxxxx, or any of Coram's predecessors, successors,
parent entities, subsidiaries, affiliates, related entities of any nature, as
well as their respective officers, directors, employees, heirs, executors,
administrators, agents and assigns, collectively or individually, with respect
to any and all claims, assertions of claims, debts, demands, actions,
suits, expenses, attorneys' fees, costs, damages and liabilities of any nature,
type and description, known or unknown, arising out of any fact or matter in any
way related to or connected with the dispute.
(b) Coram, for itself, its predecessors, successors, parent entities,
subsidiaries, affiliates, related entities of any nature, as well as on behalf
of their respective officers, directors, employees, heirs, executors,
administrators, agents and assigns, hereby forever releases, waives, discharges
and covenants not to xxx IHS, or any of IHS's predecessors, successors, parent
entities, subsidiaries, affiliates, related entities of any nature, as well as
their respective officers, directors, employees, heirs, executors,
administrators, agents and assigns, collectively or individually, with respect
to any and all claims, assertions of claims, debts, demands, actions, suits,
expenses, attorneys' fees, costs, damages and liabilities of any nature, type
and description, known or unknown, arising out of any fact or matter in any way
related to or connected with the dispute.
(c) The parties hereto understand and for valuable consideration
hereby expressly waive all of the rights and benefits of Section 1542 of the
California Civil Code (and any similar or equivalent statute under the law of
any state or jurisdiction), which section reads as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
3. Nonadmission of Liability. The parties hereto acknowledge that
this Agreement does not constitute an admission of liability and/or loss,
express or implied, on the part of either party with respect to any fact or
matter which may be involved in the dispute. The parties further agree that
nothing herein shall constitute evidence of any fact or matter related to any
such liability and/or loss that may be involved in the dispute.
4.
5. Construction of Agreement. This Agreement is the product of
negotiation by and among the parties hereto and their respective attorneys.
Accordingly, the parties hereto acknowledge and agree that this Agreement shall
not be deemed prepared or drafted by one party or another, or the attorneys for
one party or another, and shall be construed accordingly.
6. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
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7. Captions. The captions herein have been inserted for identification
and reference purposes only and shall not be used in the construction or
interpretation of this Agreement.
8. Assignment of Claims. The parties hereto represent and warrant that
they have not assigned or transferred or purported to assign or transfer to
anyone any claim, demand, action or cause of action based upon, arising out of ,
pertaining to , concerning or connected with any of the matters or things
released herein.
9. Delaware Law. This Agreement will be interpreted in accordance with
Delaware law.
10. Severability. If any provision or provisions of this Agreement
shall be held invalid, illegal or unenforceable, the validity, legality and/or
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. If any terms or sections of this Agreement are determined to
be unenforceable, they shall be modified so that the unenforceable term or
section is enforceable to the greatest extent possible.
11. Entire Agreement. This Agreement contains the entire understanding
among the parties to this Agreement with regard to the matters herein set forth,
and is intended to be and is a final integration thereof. There are no
representations, warranties, agreements, arrangements, undertakings, oral or
written, between or among the parties hereto relating to the dispute or to this
Agreement which are not fully expressed herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Dated: May 5, 1997 Dated: May 1, 1997
/s/Xxxxxxxx X. Xxxxxx /s/Xxxx X. Xxxxxx
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Integrated Health Services, Inc. Coram Healthcare Corporation
By: Xxxxxxxx X. Xxxxxx By: Xxxx X. Xxxxxx
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Its: Executive V.P. & Gen. Counsel Its: SR. V.P. & Gen. Counsel
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