AGREEMENT OF TERMINATION
Exhibit
99.1
Execution
Copy
Agreement
of Termination, dated as of September 13, 2006, by and among Becton, Xxxxxxxxx
and Company, a New Jersey corporation (“BD”),
NationsHealth, Inc., a Delaware corporation (the “Company”),
and
United States Pharmaceutical Group, L.L.C., a Delaware limited liability company
(“USPG
LLC”
and,
collectively with the Company, the “NationsHealth
Parties”).
1. Termination
of Agreements.
The
parties agree, for good and valuable consideration, that, upon receipt by BD
from the Company of the payment specified in Section 2 hereof, both that certain
Medical Benefit Distribution Agreement, dated as of October 1, 2003, as amended
on November 9, 2005, March 22, 2006, May 12, 2006 and August 7, 2006 (as
amended, the “Distribution
Agreement”),
by
and among BD and USPG LLC, and that certain Durable Medical Equipment Rebate
Agreement for Retail Program, dated as of April 1, 2004, as amended on
January 21, 2005 (as amended, the “Retail
Agreement”),
by
and among BD and USPG LLC, shall be and hereby are terminated. With respect
to
the Distribution Agreement, the provisions enumerated in Section 12.4 thereof
shall survive termination of the Distribution Agreement, other than Section
3.2(b) and Section 5.1(b) which the parties agree shall be of no further force
or effect. The parties further agree that (i) upon receipt by BD from the
Company of the payment specified in Section 2 hereof, the NationsHealth Parties
have no liability for not purchasing a specific amount of products from BD
prior
to the date hereof pursuant to the Distribution Agreement, and have no
obligation to purchase additional products from BD as of the date hereof
pursuant to the Distribution Agreement, and (ii) there are no pending purchase
orders as of the date hereof pursuant to the Distribution Agreement. With
respect to the Retail Agreement, the provisions enumerated in Section 13.5
thereof shall survive termination of the Retail Agreement, other than Section
6.1(b) which the parties agree shall be of no further force or effect. The
parties further agree that there are no pending purchase orders as of the date
hereof pursuant to the Retail Agreement.
2. Payment.
In full
satisfaction of the $5,484,601.64 currently due to BD pursuant to the
Distribution Agreement, the Company agrees (i) to make on the date hereof a
payment to BD in immediately available funds in the amount of $4,375,000 and
(ii) that any and all Rebates (as defined in the Retail Agreement) due and
owing
from BD to a NationsHealth Party pursuant to the Retail Agreement prior to
the
date hereof shall be and hereby are deemed to be satisfied in full. The
NationsHealth Parties represent and warrant to BD that each NationsHealth Party
will be solvent immediately subsequent to giving effect to the transactions
contemplated hereby.
IN
WITNESS WHEREOF,
the
parties hereto have set their hands, and duly authorized this Agreement of
Termination as of the day and year first above written.
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BECTON,
XXXXXXXXX AND COMPANY
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By:
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/s/ Xxxxxxx Xxxxxxxxx |
By:
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/s/ Xxxxxx Xxxxxxxx | |
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| Name:
Xxxxxxx Xxxxxxxxx Title: Chief Financial Officer |
Name:
Xxxxxx Xxxxxxxx
Title: Worldwide Controller, BD Diabetes Care |
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UNITED
STATES PHARMACEUTICAL GROUP,
L.L.C.
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By:
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/s/ Xxxxxxx Xxxxxxxxx | |||
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Name:
Xxxxxxx Xxxxxxxxx
Title: Chief Financial Officer |
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