EXHIBIT 10.9
AGREEMENT
Between FOHP, Inc. ("FOHP") and Alliance Medical Group, Inc.
("Subcontractor"), concerning the employment by FOHP of ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
("Employee").
WHEREAS Subcontractor currently employs Employee and,
WHEREAS both Employee and Subcontractor desire to have FOHP employ
Employee according to the terms of this Agreement,
NOW, THEREFORE, FOHP, Employee and Subcontractor, for the consideration
specified in this Agreement, agree as follows:
1. TERM. FOHP, Employee and Subcontractor hereby agree that FOHP employ
Employee as Chief Medical Officer for FOHP, Inc. and as Medical Director of
First Option Health Plan of New Jersey, Inc., both for an indefinite period,
which shall be no less that two years from the date Employee begins active
employment. During his employment, Employee shall be subject to immediate
termination for egregious misconduct or loss of license. At the conclusion of
the INITIAL two year period, Employee's employment agreement shall automatically
renew itself for two year periods and thereafter UNLESS EITHER FOHP OR
SUBCONTRACTOR GIVES TO THE OTHER written notice of non-renewal AT LEAST TWELVE
MONTHS PRIOR TO THE EXPIRATION of the initial two YEAR PERIOD OR TWELVE MONTHS
PRIOR TO THE EXPIRATION OF ANY TWO YEAR RENEWAL PERIOD, AS THE CASE MAY BE.
During the period of notice of such non-renewal, Employee shall continue to work
the remainder of the THEN CURRENT term.
2. RESPONSIBILITIES. Subcontractor and Employee agree that Employee
shall devote to FOHP 80% of the total time commitment set forth in his contract
with Subcontractor.
3. SALARY. Subcontractor shall be paid $240,000.00 per year for the
salary and benefits of Employee. Providing benefits to Employee shall be the
obligation of Subcontractor and not FOHP; however, FOHP shall provide payment to
Subcontractor for those benefits included within the annual compensation set
forth above.
4. AUTOMOBILE AND EXPENSES. Employee shall be provided with an
automobile, gasoline credit card, automobile insurance and maintenance, all at
FOHP's expense. Employee shall also be reimbursed for other business-related
expenses in accordance with FOHP policy for employee reimbursement.
5. CHANGES TO AGREEMENT. No written or oral modification, amendment,
addition to this Agreement, nor waiver of any of its provisions, shall be valid
or enforceable unless in writing and signed by the signatories to this
Agreement.
6. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
FOHP, Employee and Subcontractor with respect to the subject matter contained
herein and supersedes any other prior or contemporaneous agreement whether oral
or in writing purporting to govern this subject matter.
7. SEPARABILITY. The invalidity or unenforceability of any provisions
of this Agreement shall in no way affect the validity or enforceability of any
other provision.
8. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants, or conditions set forth in this Agreement shall not be deemed
a waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any right or power under the Agreement at any one or more
times be deemed a waiver or relinquishment of such right or power at any other
times or times.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey and applicable federal law.
I understand and agree to the terms and conditions of the Agreement as
set forth above.
FOHP, INC. ALLIANCE MEDICAL GROUP, INC.
/S/▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ W. ▇▇▇▇ ▇▇▇▇▇▇
------------------ -------------------
By: ▇▇▇▇ ▇▇▇▇▇▇, President By: W. ▇▇▇▇ ▇▇▇▇▇▇
and Chief Executive Officer President
Dated: 11/30/94 Dated: 11/29/94
---------------- -----------------
/S/▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
Dated: 11/29/94
EXHIBIT 10.42
REIMBURSEMENT AGREEMENT
(CoreStates Bank Letter of Credit)
This Reimbursement Agreement (the "Agreement"), made as of April 11,
1996, by and between ▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual residing at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇"), and FOHP, Inc., a New Jersey corporation
with offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
("FOHP").
RECITALS
WHEREAS, to remain in compliance with the statutory net worth and other
capital requirements of certain regulatory bodies of the State of New Jersey,
First Option Health Plan of New Jersey, Inc. ("FOHP-NJ"), a wholly-owned
subsidiary of FOHP which operates as a health maintenance organization in the
State of New Jersey, must have a certain amount of readily ascertainable
capital; and
WHEREAS, FOHP desires that ▇▇▇▇▇▇ secure a letter of credit (the
"Letter of Credit") from CoreStates Bank (the "Bank") in the amount of Three
Hundred and Twenty Three Thousand ($323,000.00) Dollars (the "LC Amount"), which
may be drawn upon by FOHP in the event that FOHP is required to contribute
capital to FOHP-NJ so that FOHP-NJ remains in compliance with the statutory net
worth and other capital requirements of certain regulatory bodies of the State
of New Jersey;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, and for other good and valuable consideration
also recited herein, the receipt and sufficiency of which are hereby
acknowledged and agreed to, the parties hereto agree as follows:
ARTICLE ONE
CONSIDERATION FOR LETTER OF CREDIT
As consideration for ▇▇▇▇▇▇ securing the Letter of Credit, FOHP hereby
agrees to pay ▇▇▇▇▇▇ a single flat fee of two and one-half (2.5%) percent of the
LC Amount (the "Flat Fee"). The Flat Fee will be paid by FOHP by corporate
check.
ARTICLE TWO
DRAW ON LETTER OF CREDIT
Contemporaneous with any payment by ▇▇▇▇▇▇ to the Bank which is made as
a result of a draw against the Letter of Credit by FOHP, FOHP will become
obligated to reimburse ▇▇▇▇▇▇ for the amount of such draw. Interest on such
obligation will be payable monthly at a rate equal to the prime rate of a
national bank chosen by FOHP plus four (4%) percent. The principal amount of the
obligation plus all accrued interest will be payable to ▇▇▇▇▇▇ within nine (9)
months from the date the obligation is first incurred by FOHP.
ARTICLE THREE
AFFIRMATIVE COVENANTS OF FOHP
Until this Agreement terminates by its terms, FOHP hereby covenants and
agrees that:
Section 3.1 MAINTAIN CORPORATE EXISTENCE AND QUALIFICATIONS. FOHP will
use its best efforts to maintain and preserve in full force and effect, its
corporate existence and rights, franchises, licenses and qualifications
necessary to continue its business.
Section 3.2 INFORMATION AND DOCUMENTS TO BE FURNISHED TO ▇▇▇▇▇▇. FOHP
will furnish to ▇▇▇▇▇▇ its annual consolidated financial statements, which have
been audited by an independent accounting firm, as soon as delivered to any
creditor of FOHP, but in no event later than one hundred and twenty (120) days
after the end of each fiscal year.
Section 3.3. ACCESS TO RECORDS AND PROPERTY. At any time and from time
to time, upon the request by ▇▇▇▇▇▇, FOHP shall give the representatives of
▇▇▇▇▇▇ access during normal business hours to, and permit any of them to
examine, audit, copy or make extracts from, any and all books, records and
documents in the possession of FOHP or any independent contractor relating to
FOHP's affairs, and to inspect any of its properties wherever located.
Section 3.4 BANK COSTS AND FEES. FOHP will pay all Bank costs and fees
relating to the issuance of the Letter of Credit.
Section 3.5 INDEMNIFICATION. FOHP undertakes to indemnify ▇▇▇▇▇▇ from
any and all liability, loss or damage in excess of the LC Amount that ▇▇▇▇▇▇ may
suffer as a result of any claim, demand, cost, or judgment brought or procured
against ▇▇▇▇▇▇ by the Bank in connection with the Letter of Credit; provided,
that FOHP shall not indemnify ▇▇▇▇▇▇ for any liability, loss or damage that
▇▇▇▇▇▇ may suffer as a result of any claim, damage, cost or judgment brought or
procured against ▇▇▇▇▇▇ by the Bank, if such liability, loss or damage was
incurred in connection with ▇▇▇▇▇▇'▇ refusal to pay all or a portion of the LC
Amount to the Bank under the terms of the Letter of Credit.
Section 3.6 ORDER OF DRAW; REDUCTION IN LETTER OF CREDIT. FOHP agrees
not to draw against the Letter of Credit unless it first exhausts all its rights
against (i) any letter of credit which is payable to FOHP and secured by
physicians who are providers to FOHP-NJ and shareholders of FOHP (collectively,
"Physician Backed Letters of Credit," and individually, a "Physician Backed
Letter of Credit"), (ii) any guaranty of a hospital which is a provider to
FOHP-NJ, or guaranty of an affiliate thereof, which guarantees all or a portion
of the capital obligations of FOHP to FOHP-NJ (collectively, "Institutional
Guaranties," and individually, an "Institutional Guaranty"), (iii) the letter of
credit payable to FOHP secured by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ with Chemical Bank in the
amount of three million ($3,000,000) dollars (the "▇▇▇▇▇▇▇ ▇▇"), and (iv) the
letter of credit payable to FOHP secured by ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ with CoreStates Bank in the amount of three hundred thousand ($300,000)
dollars (the "▇▇▇▇▇▇▇▇ ▇▇"). In addition, in the event FOHP determines that it
no longer requires all of (a) the Letter of Credit, (b) the Physician Backed
Letters of Credit, (c) the Institutional Guaranties, (d) the ▇▇▇▇▇▇▇ ▇▇, and (e)
the ▇▇▇▇▇▇▇▇ ▇▇ and thereby desires to reduce or terminate one or more of such
instruments, FOHP will reduce or terminate the Letter of Credit before reducing
or terminating any Physician Backed Letter of Credit, any Institutional
Guaranty, the ▇▇▇▇▇▇▇ ▇▇ or the ▇▇▇▇▇▇▇▇ ▇▇.
ARTICLE FOUR
NEGATIVE COVENANTS OF FOHP
Until this Agreement terminates by its terms, FOHP hereby covenants and
agrees that:
Section 4.1 WITHDRAWAL CONDITIONS. FOHP will not draw against the
Letter of Credit unless the following conditions are satisfied: (i) FOHP must
furnish written evidence to ▇▇▇▇▇▇ that either or both the New Jersey Department
of Insurance ("DOI") and/or the New Jersey Department of Health ("DOH") has
required that FOHP-NJ obtain additional capital to remain in compliance with the
statutory net worth and other capital requirements applicable to FOHP-NJ; and
(ii) FOHP does not have sufficient capital to contribute to FOHP-NJ so that
FOHP-NJ is able to satisfy the request of the DOI and/or DOH and remain in
compliance with the statutory net worth and other capital requirements
applicable to it, and provides written representation to that effect.
Section 4.2 MERGER. FOHP will not, without the prior written consent of
▇▇▇▇▇▇, merge into any other entity.
Section 4.3 DISPOSITION OF ASSETS. FOHP will not, without the prior
written consent of ▇▇▇▇▇▇, sell, lease, transfer, convey or otherwise dispose of
more than fifty (50%) percent of its assets during any six (6) month period.
Section 4.4 LOANS. FOHP will not, without the prior written consent of
▇▇▇▇▇▇, make loans to any person, firm or entity.
Section 4.5 TRANSFERS OF NOTES OR ACCOUNTS RECEIVABLE. FOHP will not,
without the prior written consent of ▇▇▇▇▇▇, sell, assign, transfer, discount or
otherwise dispose of any accounts receivables or any promissory note payable to
it with or without recourse, except in the ordinary course of business.
Section 4.6 DIVIDENDS. FOHP will not, without the prior written consent
of ▇▇▇▇▇▇, declare or pay any cash dividends or make any distribution on, or
redeem, retire or otherwise acquire directly or indirectly, any share of its
stock, other than redemptions by FOHP of its stock in accordance with the
provisions of its Amended and Restated Certificate of Incorporation.
-3-
ARTICLE FIVE
BREACH OF COVENANTS
In the event FOHP materially breaches any of the covenants contained in
Article Three or Article Four of this Agreement (each a "Material Breach"),
▇▇▇▇▇▇ shall provide FOHP written notice of the Material Breach (a "Notification
Letter"). Upon the receipt of a Notification Letter and until the Material
Breach discussed in the Notification Letter is remedied, FOHP shall not draw
against the Letter of Credit.
ARTICLE SIX
MISCELLANEOUS
Section 6.1 TERMINATION. This Agreement shall terminate upon the
earlier of (a) the termination of the Letter of Credit, (b) the termination of
▇▇▇▇▇▇'▇ employment with FOHP for any reason, (c) the death of ▇▇▇▇▇▇ or (d)
▇▇▇▇▇▇ becoming "disabled" as such term is defined in the employment agreement
between FOHP and ▇▇▇▇▇▇, the effective date of which was October 27, 1995.
Section 6.2. NOTICES. All notices, requests, consents and other
communications shall be in writing and shall be delivered in person or delivered
by telex, telegram, telecopy, a nationally recognized overnight courier service
or mailed by first class registered or certified mail, postage prepaid, to the
addresses set forth above or, in any case, at such other address or addresses as
shall have been furnished in writing to all parties to this Agreement.
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery, telex,
telegram or telecopy, on the date of such delivery, (b) in the case of a
nationally recognized overnight courier service, on the second business day
following the date of dispatch, and (c) in the case of mailing, on the fifth
business day following deposit of a notice, request, consent or other
communication, in the U.S. Mail.
Section 6.3 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and understandings
of every kind and nature between them and no party hereto shall be bound by any
condition, definition, warranty, representation or agreement other than as
expressly provided for in this Agreement or as may be, on a date subsequent to
or contemporaneous with the date hereof, duly set forth in writing signed by
each of the parties hereto. This Agreement shall not be changed, modified or
amended except by a writing signed by all the parties hereto.
Section 6.4 GOVERNING LAW. This Agreement and its validity,
construction and performance shall be governed in all respects by the laws of
the State of New Jersey, without giving effect to principles of conflict of
laws. Further, in the event that any dispute arises between the parties to this
Agreement, unless otherwise set forth herein, such dispute shall be
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settled by a court of competent jurisdiction of the State of New Jersey or the
United States District Court for the District of New Jersey and the parties
hereto agree to submit to the jurisdiction of the courts of the State of New
Jersey or the United States District Court for the District of New Jersey.
Section 6.5 SEVERABILITY. If any provision of this Agreement or the
application of any provision hereof to any person or circumstance is held
invalid, the remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected unless the provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
Section 6.6 BENEFIT OF PARTIES, ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
representatives, successors, heirs and assigns. This Agreement may not be
assigned by either party hereto except with the prior written consent of the
other party hereto.
Section 6.7 HEADINGS. The headings in the Sections of this Agreement
are inserted for convenience of reference only and shall not constitute a part
hereof.
Section 6.8 PUBLICITY. No news release or other public announcement
pertaining in any way to the transactions contemplated by this Agreement shall
be made by ▇▇▇▇▇▇ without the prior consent of FOHP.
Section 6.9 CONSTRUCTION. As used in this Agreement, words in the
singular shall be construed as including the plural and vice versa and words in
one gender shall include all genders unless the context shall clearly require
otherwise.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement or caused this Agreement to be executed by a duly authorized corporate
officer thereof as of the day and year first above written.
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
FOHP, INC.
By:/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and
General Counsel
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REIMBURSEMENT AGREEMENT
(CoreStates Bank Letter of Credit)
This Reimbursement Agreement (the "Agreement"), made as of September
13, 1996, by and between ▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual residing at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇"), and FOHP, Inc., a New Jersey
corporation with offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("FOHP").
RECITALS
WHEREAS, in April 1996, ▇▇▇▇▇▇ secured a letter of credit (the "Letter
of Credit") from CoreStates Bank (the "Bank") in the amount of Three Hundred and
Twenty Three Thousand ($323,000.00) Dollars (the "LC Amount"), which may be
drawn upon by FOHP in the event that FOHP is required to contribute capital to
First Option Health Plan of New Jersey, Inc. ("FOHP-NJ") so that FOHP-NJ remains
in compliance with the statutory net worth and other capital requirements of
certain regulatory bodies of the State of New Jersey;
WHEREAS, in connection with the Letter of Credit, FOHP and ▇▇▇▇▇▇
entered into a Reimbursement Agreement dated April 11, 1996 (the "First
Reimbursement Agreement"), pursuant to which FOHP agreed to reimburse ▇▇▇▇▇▇ for
any amounts drawn against the Letter of Credit;
WHEREAS, ▇▇▇▇▇▇ and FOHP would like to reduce the LC Amount of the
Letter of Credit to $100,000 (the "New LC Amount"); and
WHEREAS, in connection with the reduction of the LC Amount, ▇▇▇▇▇▇ and
FOHP believe it necessary to terminate the First Reimbursement Agreement and
substitute therefor this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, and for other good and valuable consideration
also recited herein, the receipt and sufficiency of which are hereby
acknowledged and agreed to, the parties hereto agree as follows:
ARTICLE ONE
REPLACEMENT OF FIRST REIMBURSEMENT AGREEMENT
The First Reimbursement Agreement, and all amendments and addendums
thereto, is terminated as of the date hereof, and this Agreement shall be
substituted therefor.
ARTICLE TWO
DRAW ON LETTER OF CREDIT
Contemporaneous with any payment by ▇▇▇▇▇▇ to the Bank which is made as
a result of a draw against the Letter of Credit by FOHP, FOHP will become
obligated to reimburse ▇▇▇▇▇▇ for the amount of such draw. Interest on such
obligation will be payable monthly at a rate equal to the prime rate of a
national bank chosen by FOHP plus four (4%) percent. The principal amount of the
obligation plus all accrued interest will be payable to ▇▇▇▇▇▇ within nine (9)
months from the date the obligation is first incurred by FOHP.
ARTICLE THREE
AFFIRMATIVE COVENANTS OF FOHP
Until this Agreement terminates by its terms, FOHP hereby covenants and
agrees that:
Section 3.1 MAINTAIN CORPORATE EXISTENCE AND QUALIFICATIONS. FOHP will
use its best efforts to maintain and preserve in full force and effect, its
corporate existence and rights, franchises, licenses and qualifications
necessary to continue its business.
Section 3.2 INFORMATION AND DOCUMENTS TO BE FURNISHED TO ▇▇▇▇▇▇. FOHP
will furnish to ▇▇▇▇▇▇ its annual consolidated financial statements, which have
been audited by an independent accounting firm, as soon as delivered to any
creditor of FOHP, but in no event later than one hundred and twenty (120) days
after the end of each fiscal year.
Section 3.3 ACCESS TO RECORDS AND PROPERTY. At any time and from time
to time, upon the request by ▇▇▇▇▇▇, FOHP shall give the representatives of
▇▇▇▇▇▇ access during normal business hours to, and permit any of them to
examine, audit, copy or make extracts from, any and all books, records and
documents in the possession of FOHP or any independent contractor relating to
FOHP's affairs, except for confidential information or materials or minutes of
meetings of the Board of Directors.
Section 3.4 BANK COSTS AND FEES. FOHP will pay all Bank costs and fees
relating to the issuance of the Letter of Credit.
Section 3.5 INDEMNIFICATION. FOHP undertakes to indemnify ▇▇▇▇▇▇ from
any and all liability, loss or damage in excess of the New LC Amount that ▇▇▇▇▇▇
may suffer as a result of any claim, demand, cost, or judgment brought or
procured against ▇▇▇▇▇▇ by the Bank in connection with the Letter of Credit;
provided, that FOHP shall not indemnify ▇▇▇▇▇▇ for any liability, loss or damage
that ▇▇▇▇▇▇ may suffer as a result of any claim, damage, cost or judgment
brought or procured against ▇▇▇▇▇▇ by the Bank, if such liability, loss or
damage was incurred in connection with ▇▇▇▇▇▇'▇ refusal to pay all or a portion
of the New LC Amount to the Bank under the terms of the Letter of Credit.
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ARTICLE FOUR
WITHDRAWAL CONDITIONS
Until this Agreement terminates by its terms, FOHP hereby covenants and
agrees that it will not draw against the Letter of Credit unless the following
conditions are satisfied: (i) FOHP must furnish written evidence to ▇▇▇▇▇▇ that
either or both the New Jersey Department of Insurance ("DOI") and/or the New
Jersey Department of Health ("DOH") has required that FOHP-NJ obtain additional
capital to remain in compliance with the statutory net worth and other capital
requirements applicable to FOHP-NJ; and (ii) FOHP does not have sufficient
capital to contribute to FOHP-NJ so that FOHP-NJ is able to satisfy the request
of the DOI and/or DOH and remain in compliance with the statutory net worth and
other capital requirements applicable to it, and provides written representation
to that effect.
In addition to the above conditions, FOHP agrees not to draw against
the Letter of Credit unless it first exhausts all its rights against (i) any
letter of credit which is payable to FOHP and secured by physicians who are
providers to FOHP-NJ and shareholders of FOHP (collectively, "Physician Backed
Letters of Credit," and individually, a "Physician Backed Letter of Credit"),
(ii) any guaranty of a hospital which is a provider to FOHP-NJ, or guaranty of
an affiliate thereof, which guarantees all or a portion of the capital
obligations of FOHP to FOHP-NJ (collectively, "Institutional Guaranties," and
individually, an "Institutional Guaranty"), (iii) the letter of credit payable
to FOHP secured by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ with Chemical Bank in the amount of three
million ($3,000,000) dollars (the "▇▇▇▇▇▇▇ ▇▇"), and (iv) the letter of credit
payable to FOHP secured by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ with CoreStates Bank in the amount
of three hundred thousand ($300,000) dollars (the "▇▇▇▇▇▇▇▇ ▇▇"). In addition,
in the event FOHP determines that it no longer requires all of (a) the Letter of
Credit, (b) the Physician Backed Letters of Credit, (c) the Institutional
Guaranties, (d) the ▇▇▇▇▇▇▇ ▇▇, and (e) the ▇▇▇▇▇▇▇▇ ▇▇ and thereby desires to
reduce or terminate one or more of such instruments, FOHP will reduce or
terminate the Letter of Credit before reducing or terminating any Physician
Backed Letter of Credit, any Institutional Guaranty, the ▇▇▇▇▇▇▇ ▇▇ or the
▇▇▇▇▇▇▇▇ ▇▇.
ARTICLE FIVE
BREACH OF COVENANTS OR CONDITIONS
In the event FOHP materially breaches any of the covenants or
conditions contained in Article Three or Article Four of this Agreement (each a
"Material Breach"), ▇▇▇▇▇▇ shall provide FOHP written notice of the Material
Breach (a "Notification Letter"). Upon the receipt of a Notification Letter and
until the Material Breach discussed in the Notification Letter is remedied, FOHP
shall not draw against the Letter of Credit.
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ARTICLE SIX
MISCELLANEOUS
Section 6.1 TERMINATION. This Agreement shall terminate upon the
termination of the Letter of Credit.
Section 6.2 NOTICES. All notices, requests, consents and other
communications shall be in writing and shall be delivered in person or delivered
by telex, telegram, telecopy, a nationally recognized overnight courier service
or mailed by first class registered or certified mail, postage prepaid, to the
addresses set forth above or, in any case, at such other address or addresses as
shall have been furnished in writing to all parties to this Agreement.
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery, telex,
telegram or telecopy, on the date of such delivery, (b) in the case of a
nationally recognized overnight courier service, on the second business day
following the date of dispatch, and (c) in the case of mailing, on the fifth
business day following deposit of a notice, request, consent or other
communication, in the U.S. Mail.
Section 6.3 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and understandings
of every kind and nature between them and no party hereto shall be bound by any
condition, definition, warranty, representation or agreement other than as
expressly provided for in this Agreement or as may be, on a date subsequent to
or contemporaneous with the date hereof, duly set forth in writing signed by
each of the parties hereto. This Agreement shall not be changed, modified or
amended except by a writing signed by all the parties hereto.
Section 6.4 GOVERNING LAW. This Agreement and its validity,
construction and performance shall be governed in all respects by the laws of
the State of New Jersey, without giving effect to principles of conflict of
laws. Further, in the event that any dispute arises between the parties to this
Agreement, unless otherwise set forth herein, such dispute shall be settled by a
court of competent jurisdiction of the State of New Jersey or the United States
District Court for the District of New Jersey and the parties hereto agree to
submit to the jurisdiction of the courts of the State of New Jersey or the
United States District Court for the District of New Jersey.
Section 6.5 SEVERABILITY. If any provision of this Agreement or the
application of any provision hereof to any person or circumstance is held
invalid, the remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected unless the provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
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Section 6.6 BENEFIT OF PARTIES, ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
representatives, successors, heirs and assigns. This Agreement may not be
assigned by either party hereto except with the prior written consent of the
other party hereto.
Section 6.7 HEADINGS. The headings in the Sections of this Agreement
are inserted for convenience of reference only and shall not constitute a part
hereof.
Section 6.8 PUBLICITY. No news release or other public announcement
pertaining in any way to the transactions contemplated by this Agreement shall
be made by ▇▇▇▇▇▇ without the prior consent of FOHP.
Section 6.9 CONSTRUCTION. As used in this Agreement, words in the
singular shall be construed as including the plural and vice versa and words in
one gender shall include all genders unless the context shall clearly require
otherwise.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement or caused this Agreement to be executed by a duly authorized corporate
officer thereof as of the day and year first above written.
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
FOHP, INC.
By:/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and
General Counsel
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