EXHIBIT 4(h)
SETTLEMENT AGREEMENT
This Settlement Agreement is entered into between Xxxxxxx Xxxxxxxxx
("Xxxxxxxxx"), Irawan Onggara ("Onggara"), Century Financial Partners, Inc.
("CFP") and Clinicor, Inc., a Nevada corporation. Xxxxxxxxx and Onggara are
referred to herein individually as a "Shareholder" and collectively as the
"Shareholders."
W I T N E S S E T H:
WHEREAS, the Shareholders and the Company are parties to that certain
Preemptive Rights Agreement effective as of February 27, 1995; and
WHEREAS, the Shareholders are willing to release the Company from all
obligations that the Company may have to the shareholders, whether pursuant to
such Preemptive Rights Agreement or otherwise, in return for the consideration
herein set forth;
NOW, THEREFORE, the parties hereto agree as follows:
1. Payment to Shareholders. At the Closing provided for below, the
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Company shall pay to the Shareholders or to such person or entity as the
Shareholders may designate the aggregate amount of One Hundred Thousand and
No/100 Dollars ($100,000.00) in cash (the "Settlement Amount"). Such amount
will be in full and final satisfaction of all of the Company's obligations to
the Shareholders and CFP, whether pursuant to the Preemptive Rights Agreement or
otherwise, as more fully set forth herein. At the request of the Shareholders,
such amount shall be paid in a single lump sum, to be divided among the
Shareholders and CFP as they see
fit. Each of the Shareholders and CFP agrees to indemnify and hold the Company
harmless from any claims related to or resulting from a dispute between or among
the Shareholders and CFP as to the allocation of the Settlement Amount between
themselves.
2. Waiver of Preemptive Rights and Termination of Agreement. As of the
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Closing, the Preemptive Rights Agreement shall terminate. Thereafter, such
agreement shall be of no force or effect whatsoever, and any and all rights of
the Shareholders pursuant to such agreement, whether accrued or unaccrued, shall
terminate. Without limiting the foregoing, each of the Shareholders hereby
waives, effective as of the Closing, any and all preferential purchase rights of
any kind with respect to (i) the proposed issuance by the Company to Oracle
Partners, L.P. and/or its affiliates of $3.5 million face amount of Convertible
Preferred Stock, (ii) the future issuance of additional shares of Convertible
Preferred Stock in satisfaction of dividends payable with respect thereto and
(iii) the issuance of Common Stock of the Company in connection with the
conversion of any shares of Convertible Preferred Stock.
3. Release. In consideration of the payment referred to above, and
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without in any way limiting any of the foregoing waivers, releases, and
terminations, each of the Shareholders and CFP does hereby release, acquit and
forever discharge the Company and its officers, directors, legal
representatives, employees, successors and assigns (the "Clinicor Parties") from
any and all
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claims, rights, demands, actions or causes of actions of whatever kind,
character and description, whether in contract, tort, pursuant to statute or
otherwise, accrued or unaccrued, that either or both of the Shareholders or CFP
or any other entity affiliated with the Shareholders may have that arise out of
or relate to (i) the Preemptive Rights Agreement, (ii) any entitlement of the
Shareholders or either of them or CFP or any other entity affiliated with the
Shareholders to commissions, either with respect to the pending transaction
between the Company and Oracle Partners, L.P. or otherwise or (iii) any other
matter; provided, however, nothing herein shall be deemed to waive or release
(i) any fiduciary, voting or other shareholder rights that Xxxxxxxxx and Onggara
have as shareholders of the Company (to the extent such rights arise from and
after the date of Closing), (ii) any rights of the Shareholders pursuant to the
Agreement and Plan of Merger dated February 27, 1995 by and among the
Shareholders, the Company and others, (iii) any rights of the Shareholders
pursuant to the Stock Purchase Agreements dated February 27, 1995 between each
of the Shareholders and the Company, (iv) this Agreement and (v) any future
agreements between the Company and any of the parties hereto. The release
herein contained shall be effective from and after the Closing and is intended
to be self effecting, so that no other documentation need be signed by either of
the Shareholders or CFP to make this release fully effective. Each of the
Shareholders and CFP represents and warrants that none of such parties has
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assigned any of the rights purported to be waived or released herein.
4. Closing. The Closing of the transaction herein contemplated (the
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"Closing") shall occur simultaneously with the issuance of Convertible Preferred
Stock pursuant to the Stock Purchase Agreement to be entered into by and between
the Company and Oracle Partners, L.P. and certain affiliates of Oracle Partners,
L.P. It is presently anticipated that such Closing shall occur on or about
July 9, 1996. If such Closing does not occur on or before July 19, 1996, this
Settlement Agreement shall become null and void.
5. Parties Fully Informed. Each of the Shareholders represents that he
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has had an opportunity to ask questions and receive information regarding the
pending transaction between the Company and Oracle Partners, L.P. Each of the
Shareholders is aware of the Company's business plan and financial condition and
has sufficient information about the Company to have reached a fully informed
and knowledgeable decision regarding release of his preemptive rights hereunder
and the other matters set forth herein.
6. Survival. The representations, warranties, covenants and agreements
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made herein shall survive the closing of the transactions contemplated hereby.
7. Successors and Assigns. Except as otherwise expressly provided herein,
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the provisions hereof shall inure to the benefit
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of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
8. Entire Agreement. This Agreement constitutes the entire agreement
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among the parties. There are no oral agreements among the parties hereto.
9. Title and Subtitles. The titles of the Sections and subsections of
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this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
10. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
11. Applicable Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas.
12. Funding Instructions. Attached hereto as Exhibit A are wire transfer
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or other instructions with respect to funding of the Settlement Amount.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
July 8, 1996.
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/s/ XXXXXXX XXXXXXXXX
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Xxxxxxx Xxxxxxxxx
/s/ IRAWAN ONGGARA
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Irawan Onggara
CENTURY FINANCIAL PARTNERS, INC.
By /s/ XXXXXXX XXXXXXXXX
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Its President
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CLINICOR, INC.
By /s/ XXXXXX X. X'XXXXXXX
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Its President
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Exhibit A
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WIRE TRANSFER INSTRUCTIONS
Xxxxxxx X. Xxxxxxxxx
Account No. 156331639
First Interstate Bank of California No. 156
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
ABA No. 000000000
$50,000.00
Citibank NYC/PBID Asset Support Services
Bank ABA No. 0000-000-00
Account No. 3733-6288
For Credit to the Account of Irawan Onggara
Account No. 558612
$50,000.00
