UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------
XXXXX HOME CARE SERVICES, INC.
Plaintiff,
97 Civ, 2746 (HB)
STIPULATION OF
-against- SETTLEMENT
----------
INTERNATIONAL NURSING SERVICES, INC.
Defendant.
It is hereby stipulated and agreed by and between Xxxxx Home Care Services,
Inc, ("Xxxxx") and International Nursing Services, Inc. ("INS"), and their
respective counsel as follows:
WHEREAS Xxxxx has asserted certain claims against INS in an action titled Care
----
Services, Inc, v. International Nursing Services, Inc., 97 Civ. 2746 (HB) (the
------------- ------------------------------------
"Action"), which is pending in this Court before the Hon, Xxxxxx Xxxx, United
States District Judge and INS has answered the complaint by denying the
allegations in the Action; and
WHEREAS Xxxxx has alleged claims against INS in the Action arising out of
nonpayment of certain sums due Xxxxx pursuant to the terms and conditions of a
registration rights and price support agreement dated as of April 17, 1996
(the "Registration Rights Agreement") between Xxxxx and INS; and
WHEREAS INS and Xxxxx desire to avoid the expense of further litigation and to
resolve fully and forever all claims and disputes between them, including
without limitation, all of the claims in the Action and under the Registration
Rights Agreement;
IT HEREBY IS STIPULATED AND AGREED THAT:
INS shall pay to Xxxxx, pursuant to the schedule contained in Paragraph 2 of
this Stipulation (the "Payment Schedule"), the total sum of Four Hundred
Thirty One Thousand Seven Hundred Five Dollars ($431,705) with interest at the
rate of nine (9%) percent per annum from April 7, 1997 until the entire sum is
paid in full (the "Payment") and the additional sum of $3,692.30 without
interest at the time the first Payment is made. The Payment also includes the
remaining $10,000 of the legal fees and expenses of Xxxxx' counsel referred to
in paragraph 9 below.
2. Each of the Payments made shall be paid by check to the order of "Xxxxx
Home Care Services, Inc. and received by Xxxxx c/o AIMS Travel Services, Inc.,
000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, Xxx Xxxx 00000 by Federal Express
using Xxxxx'x account number (1824148-32) so that Xxxxx receives each Payment
in the amount and by the date set forth in the following schedule:
$19,722 August 1, 1997
$60,000.00 August 21, 1997
$19,722.00 The first day of each calendar month for nineteen (19)
consecutive months beginning September 1, 1997 with the
last payment due on March 1, 1999.
3. (a) Simultaneously with the execution of this Stipulation, INS shall
execute an affidavit of confession of judgment (the "Judgment Affidavit") in
the form attached hereto as Exhibit A, and deliver the Judgment Affidavit to
Xxx X. Xxxxxxx, P.C. who will hold the Judgment Affidavit in escrow and
release it as follows:
(1) to Xxxxx if INS defaults in the Payment Schedule and the default
is not cured as provided in this paragraph 3;
(2) to Xxxxx if INS defaults in the obligation described in paragraph
5 of this Stipulation;
(3) to INS upon completion of the Payment.
(b) Xxxxx shall be entitled to enter a judgment against INS and
have execution therefor (the "Judgment") pursuant to the terms of this
paragraph or paragraph 5, as the case may be, and as provided in the Judgment
Affidavit in the event that INS fails to make the Payment, or any part
thereof, to Xxxxx in accordance with the Payment Schedule. Xxxxx agrees that
as a condition precedent to entering a judgment:
(1) INS shall have seven (7) calendar days within which to cure
the failure to make the Payment in accordance with the Payment Schedule; and
(2) in the event Xxxxx does not receive the Payment by the
eighth day of each calendar month set forth in the Payment Schedule (the "INS
Default"), Xxxxx shall notify Health Partners, L.P. of the INS Default in
writing by telefax (202-
Attn: Xx Xxxxxxxx, Esq. with a copy to INS by telefax (000) 000-0000
Attn: Xxxx X. Xxxxx. If Xxxxx does not receive the Payment from Health
Partners or INS on or before the fifteenth day of each calendar month as set
forth in the Payment Schedule, then Xxxxx shall have the right without further
notice to INS to docket the Judgment Affidavit with the Clerk of the United
States District Court for the Southern District of New York or with the Clerk
of the Court in New York Supreme Court, New York County and have execution
therefor. The Clerk of this Court is directed to enter judgment in favor of
Xxxxx against INS upon presentation to the Clerk of the Judgment Affidavit and
an affidavit from an officer of Xxxxx or its counsel describing the default by
INS hereunder.
4. Simultaneously with the execution of this Stipulation and upon its
being signed by the Court:
(a) INS and Xxxxx shall exchange general releases in the forms
annexed hereto as Exhibit B-1 and B-2 provided, however, that there is
specifically excluded therefrom the obligations of the parties under this
Stipulation of Settlement and, in the case of Xxxxx, its rights and the
obligations of INS and its affiliates under a Security Agreement dated as of
April 17, 1996 by and among INS, Xxxxx and JJ Care Resources, Inc. and the
Form UCC-1 Financing Statements filed in connection therewith;
(b) counsel for INS and Xxxxx shall execute a stipulation of
dismissal with prejudice of the Action without costs and attorneys' fees
(except as herein provided) in the form annexed hereto as Exhibit C,
5. INS has announced its intention to sell certain parts of its New York
business operations to New York Healthcare, Inc. ("NYH") for a purchase price
of approximately $3,000,000 (the "XXX Transaction"). INS agrees that in the
event the NYH Transaction closes while a portion of the Payment remains
outstanding, INS shall pay the balance of the Payment to Xxxxx from the
proceeds of the NYH Transaction at the time of the closing, If INS does not
make such payment within seven (7) days after the closing of the NYH
Transaction, then Xxxxx shall have the right without further notice to INS to
docket the Judgment Affidavit in the manner described in paragraph 3(b) of
this Stipulation. INS shall give NYH prior written notice of its obligations
to pay Xxxxx at the closing of the NYH Transaction at the time the contract of
sale is signed, and INS shall give Xxxxx three (3) business days prior written
notice of the closing of the NYH Transaction.
6. The parties agree that nothing contained in this Stipulation or any of
the exhibits hereto is or shall be deemed an admission of liability by any
party or an admission of any facts upon which liability could be based.
7. This Agreement may not be clarified, modified, changed or amended
except in a writing signed by each of the parties hereto,
8. INS shall also be responsible for reasonable fees and costs and
expenses of Xxxxx' counsel which is an amount equal to $13,692,30. INS has
reviewed the statements submitted by Xxxxx' counsel and has agreed that they
are reasonable in amount and has stipulated that the sum of $10,000 shall be
included in the Payment as described in paragraph 1 here the balance of
$3,692.30 shall be paid as part of the first Payment on August 1, 1997.
9. (a) Xxxxx represents that it knows and understands and has
discussed all aspects of this Stipulation with its attorneys(s), that it has
carefully read and fully understands all of the provisions of this
Stipulation, and that it is voluntarily entering into this Stipulation. Xxxxx
agrees that this Stipulation shall be construed as if the parties jointly
prepared this Stipulation.
(b) INS represents that it has discussed all aspects of this
Stipulation with its attorneys, that it has carefully read and fully
understands all of the provisions of this Stipulation, and that it is
voluntarily entering into this Stipulation. INS agrees that this Stipulation
shall be construed as if the parties jointly prepared this Stipulation.
10. The parties represent and warrant that, as of the date of the
execution of this Stipulation, each has the sole right and authority to
execute this Stipulation on its behalf, and that each has not sold, assigned,
transferred, conveyed, or otherwise disposed of any claim or demand relating
to any rights surrendered by virtue of this Stipulation.
11. The provisions of this Stipulation are severable, and if any part of
it is found to be unenforceable, the other paragraphs shall remain fully valid
and enforceable. This Stipulation shall survive the termination of any
arrangements contained herein.
12. This Stipulation sets forth the entire Stipulation between Xxxxx and
INS and fully supersedes any and all prior stipulations, promises,
representations or inducements, no matter its or their form, concerning its
subject matter, No promises or stipulations made subsequent to the execution
of this Stipulation by these parties shall be binding unless reduced to
writing and signed by authorized representatives of these parties.
13. All questions with respect to the construction and performance of this
Stipulation and the rights and liabilities of the parties hereto shall be
determined in accordance with the laws of the State of New York without
reference to principles of conflict of laws thereunder. The parties hereto
submit to the exclusive jurisdiction of the United States District Court for
the Southern District of New York or the Supreme Court of the State of New
York, New York County in respect of any matter or things arising out of
relating to or in connection with this Stipulation or the collection of the
Payment. Each party hereto knowingly waives any right to assert objections
based upon lack of personal jurisdiction, forum non conveniens or improper
venue.
14. INS and Xxxxx hereby intentionally waive trial by jury in any court
with respect to or in connection with any claim arising out of this
Stipulation, the validity or enforcement thereof, or the collection of the
Payment. INS agrees that if Xxxxx commences any legal proceeding or action to
enforce its right under this Stipulation, then Xxxxx shall be entitled to
receive its reasonable attorneys fees and costs and disbursements of any such
proceeding or action as part of any judgment or settlement made in its favor.
INS consents to service of the summons and complaint and any other process
which may be served in any such action or proceeding by the mailing of a copy
of such process, certified mail, return receipt requested, to INS at 000 X.
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
IN WITNESS WHEREOF, each of the parties hereto has knowingly and voluntarily
executed this Stipulation or has caused its duly authorized officer to execute
this Stipulation.
Dated: August _, 1997
New York, New York
International Nursing Services, Inc.
By:
Xxxx X. Xxxxx, President
Xxxxx Home Care Services, Inc.
By:
Xxxxxx Xxxxxx, President
Xxx X, Xxxxxxx, P.C.
Counsel for Plaintiff
By:
Xxx X. Xxxxxxx (0909)
XxXxxxx Xxxx Xxxxxx & Xxxxxx, LLP
Counsel for Defendants
By:
SO ORDERED:
U.S. D. J.
GENERAL RELEASE
---------------
International Nursing Services, Inc., its affiliates, subsidiaries and predece
or and successors in interest including JJ Care Resources, Inc. and National
Nursing Care-New York, Inc. (together the "Releasors"), in consideration of
the covenants and agreements contained in the Stipulation of Settlement dated
as of August 1, 1997 between International Nursing Services, Inc. and Xxxxx
Home Care Services, Inc. and the receipt of Ten Dollars ($10.00) and other
good and valuable consideration, receipt of which is hereby acknowledged,
hereby releases and discharges Xxxxx Home Care Services, Inc., its affiliates
and their respective present and former shareholders, directors, affiliates,
agents, employees, officers, consultants, successors, heirs, administrators,
executors and assigns (collectively, the "Releasees") from all actions, causes
of action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, controversies, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever in law, admiralty or equity, which
the Releasors now have, ever had or hereafter can, shall or may have against
the Releasees for, upon or by reason of any matter, cause or thing from the
beginning of the world to the date of this Release, except that it is
expressly understood that the Releasors do not release the Releasees with
respect to the Releasees' obligations under the Stipulation of Settlement
dated as of August 1, 1997.
IN WITNESS WHEREOF, Releasors have caused this Release to be executed by its
duly authorized officer this day of July 1997,
INTERNATIONAL NURSING SERVICES, INC.
By:
Xxxx X. Xxxxx, President
JJ CARE RESOURCES, INC.
By:
Xxxx X. Xxxxx, President
National Nursing Care-New York, Inc.
By:
Xxxx X. Xxxxx, President
STATE OF COLORADO
ss:
COUNTY OF ________
On July _, 1997 before me personally came Xxxx X, Xxxxx to me known, who, by
me duly sworn did depose and say that deponent is the President of each of
INTERNATIONAL NURSING SERVICES, INC., XX CARE REsoURCES, INC. and NATIONAL
CARE RF,SOURCES-NEW YORK, INC. the corporations described in, and which
executed the foregoing Release; and that deponent is duly authorized to
execute the foregoing Release on behalf of and for each of the aforesaid
corporations.
Notary Public
GENERAL RELEASE
---------------
Xxxxx Home Care Services, Inc., its affiliates and subsidiaries, and its
shareholders, directors, officers, agents, consultants and employees (together
the "Releasors"), in consideration of the covenants and agreements contained
in the Stipulation of Settlement dated as of August 1, 1997 between
International Nursing Services, Inc. ("INS") and Xxxxx Home Care Services,
Inc. and the exhibits thereto (together the "Stipulation") and other good and
valuable consideration, receipt of which is hereby acknowledged, hereby
releases and discharges each of INS, its affiliates, subsidiaries and
predecessors and successors in interest and their respective shareholders,
directors, officers, agents, consultants and employees (collectively, the
"Releasees") from all actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, controversies,
variances, trespasses, damages, judgments, executions, claims and demands
whatsoever in law, admiralty or equity, which the Releasors now have, ever had
or hereafter can, shall or may have against the Releasees for, upon or by
reason of any matter, cause or thing from the beginning of the world to the
date of this Release, except (i) that it is expressly understood that the
Releasors do not release the Releasees with respect to the Releasees'
obligations under (i) the Stipulation of Settlement dated as of August 1, 1997
or (ii) the Collateral Security Agreement dated as of April 17, 1997 by and
among INS, Xxxxx and JJ Care Resources, Inc., the security interests granted
in favor Xxxxx hereunder and the Form UCC-1 Financing Statements filed in
connection therewith.
IN WITNESS WHEREOF, Releasors have caused this Release to be executed by its
xxxx authorized officer this day of July 1997.
XXXXX HOME CARE SERVICES, INC.
By:
Xxxxxx Xxxxxx, President
STATE OF NEW YORK )
Ss:
COUNTY OF NEW YORK )
On July _, 1997 before me personally came Xxxxxx Xxxxxx to me known, who, by
me duly sworn did depose and say that deponent is the President of Xxxxx Home
Care Services, Inc., the corporation described in, and which executed the
foregoing Release; and that deponent is duly authorized to execute the
foregoing Release on behalf of and for the corporation.
Notary Public
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------
XXXXX HOME CARE SERVICES, INC.
Plaintiff,
-against-
INTERNATIONAL NURSING SERVICES, INC. AFFIDAVIT OF
CONFESSION OF JUDGMENT
Defendant.
STATE OF COLORADO
Ss:
COUNTY OF DENVER
Xxxx X. Xxxxx, being duly sworn, deposes and says:
1. I am the President of International Nursing Services, Inc. ("INS"), a
Colorado corporation, and the defendant in the above entitled action. I am
authorized to sign this affidavit of confession of judgment on behalf of INS.
XXX does not maintain a place of business in New York State and authorizes the
entry of judgment in the County of New York, State of New York,
2. INS hereby confesses judgment herein and authorizes entry of judgment
against INS in the County of New York in the State of New York for the sum and
upon the terms and conditions set forth in paragraph 3 immediately below.
3. Upon submission to this Court of an affidavit by Xx. Xxxxxx Xxxxxx,
President of Xxxxx Home Care Services, Inc. ("Xxxxx") or its counsel, Xxx X.
Xxxxxxx, P,C, as to the amount outstanding and the existence of a default
under the stipulation of settlement agreement described below, INS hereby
confesses judgment in this Court in favor of Xxxxx for the sum of Four Hundred
Thirty One Thousand Seven Hundred Five Dollars ($431,705), together with
interest thereon on the unpaid balance at the rate of nine (9%) percent per
annum from April 7, 1997, less the amount (as sworn to by the person whose
affidavit is submitted) of the payments, if any, that have been paid by INS to
Xxxxx under the terms of a certain stipulation of settlement agreement dated
as of August 1, 1997 between INS and Xxxxx (a true and correct copy of which
is attached hereto as Exhibit A) and hereby authorizes Xxxxx or its
successors, administrators or assignees to enter judgment in the United States
District Court for the Southern District of New York or in Supreme Court of
the State of New York in New York County, New York for that sum against INS
together with the reasonable attorneys fees, costs and disbursements of Xxxxx
in entering this confession of judgment.
4. INS states that this confession of judgment is for a debt justly due to
Xxxxx arising out of a registration rights and price support agreement dated
as of April 17, 1997 between INS and Xxxxx,
5. This confession of judgment is not for the purpose of securing Xxxxx
against a contingent liability.
International Nursing Services, Inc.
By:
Xxxx X. Xxxxx, President
STATE OF COLORADO
Ss:
COUNTY OF
On July _, 1997 before me personally came Xxxx X. Xxxxx to me known, who, by
me duly sworn did depose and say that deponent is the President Of
INTERNATIONAL NURSING SERVICFS, INC., the corporation described in, and which
executed the foregoing Confession of Judgment; and that deponent is duly
authorized to execute the foregoing Confession of Judgment on behalf of and
for the corporation.
Notary Public
