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EXHIBIT 10.34
SETTLEMENT AGREEMENT
AGREEMENT dated as of the 27th day of November, 1996 by and
between U.S. HomeCare Infusion Therapy Products Corporation and U.S. HomeCare
Corporation (collectively, "USHC"), on the one hand, and Xxxxxx X. Xxxx, Xxxx
Health Management Services, Inc. and Home Infusion Pharmaceutical Services, Inc.
(collectively, "Xxxx"), on the other.
WHEREAS Xxxx and USHC have asserted certain claims each
against the other in actions titled Kingsland Associates x. Xxxx Health
Management Services, Inc., Index No. 14294/93, pending in the Supreme Court of
the State of New York for the County of Nassau; Home Infusion Pharmaceutical
Services, Inc. v. U.S. HomeCare Infusion Therapy Products Corporation, Index No.
121053/93, pending in the Supreme Court of the State of New York for the County
of New York; and U.S. HomeCare Infusion Therapy Products Corporation v. Home
Infusion Pharmaceutical Services, Inc., Index No. 117835/93, also pending in the
Supreme Court for New York County (the "Actions"); and
WHEREAS the parties to this Agreement desire to avoid the
expense of further litigation and resolve fully and forever all claims and
disputes between them;
WHEREAS for good and valuable consideration, including the
covenants and promises exchanged herein;
IT HEREBY IS STIPULATED AND AGREED THAT:
1. USHC shall pay to Home Infusion Pharmaceutical Services,
Inc. ("HIPS"), or such other party as HIPS may hereafter designate in writing,
sums aggregating One Million Three Hundred Thousand Dollars ($1,300,000.00) (the
"Payments") and deliver to Home Infusion Pharmaceutical Services, Inc. 200,000
shares of USHC Common Stock (the "Shares"), in accordance with Paragraphs 2 and
5 of this Agreement.
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2. The Payments shall be paid by check to the order of Home
Infusion Pharmaceutical Services, Inc. according to the following schedule, and
shall be delivered to the law firm of Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx &
Xxxxx, P.C., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 ("Xxxx'x
Counsel"), provided, however, that if the indicated date is a weekend or
holiday, then the applicable payment shall be due on the next business day
thereafter:
$50,000.00 Upon execution of this Agreement
$55,000.00 November 29, 1996
$55,000.00 December 15, 1996
$55,000.00 January 15, 1997
$55,000.00 February 15, 1997
$55,000.00 March 15, 1997
$20,000.00 The fifteenth (15th) of each month for forty-
eight (48) months beginning April 15, 1997
$15,000.00 April 15, 2001
Notwithstanding the schedule contained in this Paragraph, the Payments shall be
due and payable immediately upon the consummation of a merger, consolidation,
sale of all or substantially all of the assets of USHC, or a similar transaction
in which USHC is not the surviving corporation ("Acquisition").
3. Simultaneously with the execution of this Agreement, USHC
shall execute an Affidavit For Judgment By Confession (the "Judgment Affidavit")
in the form attached hereto as Exhibit A. USHC and Xxxx agree that Xxxx shall be
entitled to obtain a Judgment pursuant to the terms of this Paragraph and as
provided in the Judgment Affidavit in the event that USHC fails to timely remit
the Payments to Xxxx as provided in this
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Agreement or as specified in Paragraph 4 below; Xxxx agrees that as conditions
precedent to obtaining a Judgment it shall (a) provide to Xxxxxxx, Xxxxxxx &
Xxxxxxxx LLP, attention Xxxxx X. Xxxxxxxxx, Esq., prior written notice of no
less than fifteen (15) days, during which USHC shall have the opportunity to
cure any claimed default; and (b) deduct from the sum sought in any Judgment,
and accurately represent in any Affidavit it presents to a Court in support of
any application for a Judgment, the amount of the Payment, if any, that has been
paid by USHC to Xxxx.
4. USHC and Xxxx recognize that by statute the Judgment
Affidavit expires after three years. Accordingly, in order to provide security
for the monthly payments to be made beyond three years from the date of the
signing of the Judgment Affidavit pursuant to Paragraph 2 above, USHC agrees to
supply to Xxxx in June 1998, and in no event later than June 30, 1998, an
additional Judgment Affidavit in an amount not to exceed the then outstanding
amount of the Payments (the "Supplementary Judgment Affidavit"). USHC agrees
that failure to deliver the Supplementary Judgment Affidavit shall constitute an
event of default for which Xxxx may seek entry of Judgment By Confession
pursuant to Paragraph 3 above; Xxxx agrees that as conditions precedent to
entering such Judgment by Confession it shall (a) provide to Xxxxxxx, Phleger &
Xxxxxxxx LLP, attention Xxxxx X. Xxxxxxxxx, Esq., prior written notice of no
less than fifteen (15) days, during which USHC shall have the opportunity to
cure any claimed default; and (b) deduct from the sum sought in any Judgment,
and accurately represent in any Affidavit it presents to a Court in support of
any application for a Judgment, the amount of the Payment, if any, that has been
paid by USHC to Xxxx.
5. The Shares shall be delivered to Xxxx'x Counsel on or
before the tenth (10th) business day after execution of this Agreement. USHC
shall file with the Securities
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and Exchange Commission ("SEC") a registration statement on Form S-1 or S-3
including the Shares no later than 30 days following completion of USHC's audit
for the year ending December 31, 1996, but in no event later than April 30,
1997, and USHC shall diligently pursue obtaining the effectiveness thereof.
Notwithstanding any failure of the SEC to declare the registration statement
effective prior to any Acquisition, Home Infusion Pharmaceutical Services, Inc.
shall receive the same consideration per share of USHC Common Stock in any
Acquisition as is received by any other holder of USHC Common Stock in their
capacity as holders of USHC Common Stock. Notwithstanding the date contained in
this Paragraph for the delivery of the Shares, delivery of the Shares shall be
due immediately upon any Acquisition.
6. This Agreement, and the terms thereof, shall be held
confidential, and shall not be disclosed to anyone except as required by law,
except that the parties may make such disclosure to their respective accountants
and attorneys to the extent needed to obtain financial, tax or legal advice.
7. Simultaneously with the execution of this Agreement, the
parties to this Agreement shall exchange Releases in the form annexed hereto as
Exhibit B.
8. Simultaneously with the execution of this Agreement,
counsel for USHC and Xxxx shall execute Stipulations of Dismissal in the form
annexed hereto as Exhibit C.
9. The parties agree that nothing contained in this Agreement
or any of the Exhibits hereto is or shall be deemed an admission of liability by
any party. Both of the parties to this Agreement continue to maintain that their
claims and/or defenses asserted in the Actions are meritorious.
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10. This Agreement may not be clarified, modified, changed or
amended except in a writing signed by each of the parties hereto.
11. All of the parties to this Agreement were represented by
counsel and this Agreement was negotiated by counsel.
12. This Agreement shall be governed by the laws of the State
of New York and jurisdiction and venue shall lie exclusively in the State of New
York regarding any dispute arising hereunder.
13. This Agreement may be executed in one or more
counterparts, each of
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which shall be an original as against the party who signed it, and all of which
shall constitute one and the same instrument.
November ___, 1996 U.S. HOMECARE INFUSION
THERAPY PRODUCTS CORPORATION
By:______________________________
Xxxxxx X. Xxxxxxxx as
Corporate Secretary
November ___, 1996 U.S. HOMECARE CORPORATION
By:______________________________
Xxxxxx X. Xxxxxxxx as
Corporate Secretary
November ___, 1996 XXXX HEALTH MANAGEMENT
SERVICES, INC.
By:______________________________
Xxxxxx X. Xxxx as
President
November ___, 1996 HOME INFUSION PHARMACEUTICAL
SERVICES, INC.
By:______________________________
Xxxxxx X. Xxxx as
President
November ___, 1996 _________________________________
XXXXXX X. XXXX
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