EXHIBIT 10.43
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Agreement") is made, effective for all
purposes, as of the 1st day of November 2002, by and between National Medical
Health Card Systems, Inc., a corporation organized under the laws of Delaware
("NMHC"), Integrail Acquisition Corp., a corporation organized under the laws of
Delaware and a wholly owned subsidiary of NMHC (collectively the "Assignee") and
Health Solutions, Ltd., a corporation organized under the laws of New York (the
"Assignor").
W I T N E S S E T H :
WHEREAS, Assignees and Assignor are parties to an Asset Purchaser Agreement
dated as of November 1, 2002 (the "Purchase Agreement") whereby Assignees are
purchasing all of the assets that are used in connection with the Business (as
such term is defined in the Purchase Agreement) of Assignor;
WHEREAS, pursuant to the Purchase Agreement Assignor agrees to assign to
Assignees certain of its Intellectual Property (as such term is defined in the
Purchase Agreement) as set forth in Schedule 1;
WHEREAS, Assignor desires to assign and convey to Assignee certain
Intellectual Property assets (the "Assets") as set forth in Schedule 1 hereto;
NOW THEREFORE, in consideration of the foregoing promises, the mutual
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee
hereby agree as follows:
ARTICLE I
ASSIGNMENT
Assignor hereby assigns, transfers and conveys to Assignees all of
Assignor's right, title and interest in and to the Assets described in Schedule
1. Assignor agrees, at the expense of the Assignor, to execute and deliver all
further instruments and documents, and take all further action that may be
necessary or desirable in order to perfect the assignment of the Assets
described in Schedule 1.
ARTICLE II
LIABILITIES
Assignees hereby assume and agree to pay, discharge or perform, as
appropriate, and to indemnify and hold Assignor and its assignees harmless from
and against any and all liabilities, suits, claims, losses, damages and
expenses, including costs and reasonable attorneys' fees and costs of
investigation, relating to, or arising from, the Assets relating to or arising
out of Assignees' use of the Assets after the date of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of Assignor. Assignor hereby
acknowledges, represents and warrants to Assignees that:
(a) Assignor, to the best of its knowledge, owns all of the right, title
and interest in and to the Assets free and clear of any and all liens and
encumbrances.
(b) it has all necessary authority to execute, deliver and perform its
obligations under this Agreement, and it has taken all necessary action to
approve and adopt this Agreement and authorize its execution, delivery and
performance;
(c) this Agreement has been duly executed and delivered on behalf of
Assignor and this Agreement constitutes a legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms;
(d) the consent of any person or entity that is required to be obtained in
order for Assignor to execute, deliver or perform its obligations under this
Agreement has been obtained.
(e) to the best of Assignor's knowledge, all of the assets listed on
Schedule 1 represent all of the Intellectual Property assets used in connection
with the Business.
Section 3.02. Representations and Warranties of Assignees. Assignees hereby
represent and warrant to Assignor that:
(a) it has all necessary authority to execute, deliver and perform its
obligations under this Agreement, and it has taken all necessary action to
approve and adopt this Agreement and authorize its execution, delivery and
performance;
(b) this Agreement has been duly executed and delivered on behalf of each
of the Assignees and this Agreement constitutes the legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms;
(c) Assignees have all requisite power, authority and capacity to acquire
and hold the interests which comprise the Assets.
ARTICLE IV
NOTICES
All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed given when delivered personally or when sent by
Federal Express or any other reputable overnight courier service to the
recipient thereof addressed to the address as set forth below.
If to Assignor:
Health Solutions, Ltd.
00 Xxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx XxxXxxxxxx
With a copy to:
Xxxx X. Xxxxxxxx, Esq.
Lombardi, Reinhard, Xxxxx & Xxxxxxxx, P.C.
III Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
If to Assignees:
National Medical Health Card Systems, Inc.
00 Xxxxxx Xxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
With a copy to:
National Medical Health Card Systems, Inc.
00 Xxxxxx Xxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxx, Esq.
ARTICLE V
AMENDMENT, WAIVER AND TERMINATION
Any provision of this Agreement may be amended or modified in whole or in
part and performance under any provision of this Agreement may be waived in
whole or in part, at any time, by an agreement or instrument in writing executed
by the party who would be adversely affected by any such amendment, modification
or waiver. The waiver by any party of a breach of any provision in this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach hereunder.
ARTICLE VI
MISCELLANEOUS
Entire Agreement. This Agreement contains the entire agreement between each
party hereto with respect to the transactions contemplated hereby, all prior
negotiations and discussions by and among each party hereto pertaining to the
subject matter hereof which are not reflected in this Agreement are merged into
this Agreement and have no further force and effect.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
conflict of laws principles thereof.
Binding Effect. This Agreement shall inure to the benefit of and be binding
upon each party hereto and their respective successors and permitted assigns.
Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute but one and the same instrument.
Interpretation. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Severability. Any provision of this Agreement which is invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability, without
affecting in any way the remaining provisions hereof in such jurisdiction or
rendering that or any other provision of this Agreement invalid, illegal or
unenforceable in any other jurisdiction. Each party hereby agrees that as to any
provision which is rendered unenforceable under the terms of this Section, they
shall amend this Agreement so as to add a provision of similar import which is
enforceable.
Further Assurances. Assignor agrees to use reasonable commercial efforts to
execute and deliver such other instruments, documents and agreements as may be
necessary or advisable to consummate the assignment of the Assets contemplated
by this Agreement, provided however, that if Assignor incurs out-of-pocket
expenses from engaging any outside law firm or representative in so doing,
Assignees shall reimburse Assignor for the reasonable cost incurred by Assignor
resulting from such engagement.
IN WITNESS WHEREOF, Assignor and each Assignee have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
date first written above.
NATIONAL MEDICAL HEALTH CARD
SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------
Xxxxx X. Xxxx, President
INTEGRAIL ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx, President
SCHEDULE 1
List of Intellectual Property Assets
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
Xxxx Status Date Serial No. Next Steps
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
Integrail Health Information Notice of Allowance 8/27/2002 78/044423 Need to File a Statement of
Management Use by February 2003
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
Integrail Awarded Registration No. 9/17/2002 78/004429 Registration No. 2,622,324
Posted on xxx.xxxxx.xxx;
awaiting arrival of
Certificate of
Registration
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
Magellan Episode Finder Certificate of 5/7/2001 Registration No. 2,441,981
Registration
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
Integrail ForeRunner Notice of Publication 10/25/2002 78/126881 If no opposition, will receive
certificate of registration in
a few months
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
I/O Analytics Did Trademark Search 2/18/2002 File Intent to Use Application
--------------------------------------- --------------------------- ---------------- ---------------- ------------------------------
