CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made and effective as of November 19, 1998, by and
between National Medical Health Card Systems, Inc., its subsidiaries and
affiliates ("Health Card") and Xxxx Xxxxx ("Xxxxx"). The parties acknowledge the
following facts:
A. Health Card and Xxxxx are desirous to engage in a possible relationship
between the parties which may require an examination by Xxxxx of Health Card and
its business undertakings (the "Project"); and
B. In order to proceed with the Project, Health Card may disclose to Xxxxx
certain Proprietary Information (as such term is hereinafter defined).
In consideration of the above promises and the covenants hereinafter set
forth, the parties agree as follows:
1. a. "Proprietary Information" means information including, but not limited to
clients, pricing and information which is related to the business of Health Card
from which Health Card (1) derives economic value, actual or potential, from not
being generally known to other persons who can obtain economic value from its
disclosure or use; and (2) is the subject of efforts by Health Card that are
reasonable under the circumstances to maintain its secrecy, including without
limitation (i) with respect to information which has been reduced to tangible
form, marking such information clearly and conspicuously with a legend
identifying its confidential or proprietary nature; (ii) with respect to any
oral presentation or communication, denominating such information as
confidential immediately before, during or after such oral presentation or
communication; or (iii) otherwise treating such information as confidential.
Assuming the criteria in clauses (1) and (2) above are met, Proprietary
Information includes, but is not limited to technical and nontechnical
information and data related to the formulas, patterns, designs, compilations,
programs, inventions, methods, techniques, drawings, processes, finances, actual
or potential customers and suppliers, research, development, existing and future
products, and employees of Health Card. Proprietary Information also includes
information which has been disclosed to Health Card by a third party, which
Health Card is obligated to treat as confidential.
b. Proprietary Information does not include any information which (1) is
already known to Xxxxx at the time it is disclosed to Xxxxx by Health Card,
provided that such information has been rightfully received by Xxxxx from a
third party without restriction on disclosure and without breach of an
obligation of confidentiality running directly or indirectly to Health Card; (2)
is disclosed by Xxxxx pursuant to a requirement of a governmental agency or is
required to be disclosed by operation of law; provided, however, that Xxxxx
shall first have given written notice of such required disclosure to Health Card
to allow Health Card to seek to protect the confidentiality of the information
required to be disclosed; or (3) before being divulged by Xxxxx (i) has become
generally known to the public through no wrongful act of Xxxxx (ii) has been
rightfully received by Xxxxx from a third party without restriction on
disclosure and without breach of an obligation of confidentiality running
directly or indirectly to Health Card; (iii) has been approved for release to
the general public by written authorization of Health Card; (iv) has been
independently developed by Xxxxx without use, directly or indirectly, of the
Proprietary Information; or (v) has been furnished to a third party by Health
Card without restrictions on the third party's right to disclose the
information.
2. Xxxxx (a) must receive and hold the Proprietary Information in trust and in
strictest confidence; (b) must protect the Proprietary Information from
disclosure and in no event take any action causing, or failing to take
reasonable action necessary in order to prevent, any Proprietary Information
disclosed to Xxxxx to lose its character as Proprietary Information; and (c)
must not use, duplicate, reproduce, distribute, disclose or otherwise
disseminate the Proprietary Information except to perform the Project. Any and
all reproductions of the Proprietary Information must prominently contain a
confidentiality legend.
3. Disclosures of the Proprietary Information may be made only to employees,
agents, associates or independent contractors of Xxxxx (a) who are directly
involved in the Project and have a specific need to know such information; and
(b) whom Xxxxx has obligated to hold the Proprietary Information in trust and in
strictest confidence.
4. This Agreement and the rights and obligations of the parties under this
Agreement may be assigned only upon the prior written approval of the parties.
The rights and obligations of the parties will inure to the benefit of, will be
binding upon and will be enforceable by the parties and their lawful successors
and representatives.
5. No modification of this Agreement or waiver of any of its terms will be
effective unless set forth in a writing signed by the party against whom it is
sought to be enforced.
6. This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same Agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the
same counterpart.
7. Xxxxx acknowledges and agrees that, in the event of any breach or threatened
breach of any provision of this agreement, Health Card may be without an
adequate remedy at law and, accordingly, shall be entitled to enforce such
provision by temporary or permanent injunctive or mandatory relief obtained in
an action or proceeding instituted in any court of competent jurisdiction
without the necessity of proving damages and without prejudice to any other
rights or remedies which it may have at law or in equity. Xxxxx hereby agrees to
the jurisdiction of all federal and state courts within the state of the
defending party in connection with any matter relating to this Agreement. Xxxxx
further agrees that service of process may be made, in addition to all other
methods permitted by law, by Certified Mail, Return Receipt Requested, sent to
the address set forth below.
8. Any notices to the parties pursuant to the terms of this Agreement shall be
hand delivered or mailed by Certified Mail, Return Receipt Requested, or
overnight courier as follows:
If to Xxxxx:
Xxxx Xxxxx
00000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone Number - 000-000-0000
If to Health Card, at:
National Medical Health Card Systems, Inc.
00 Xxxxxx Xxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, President
Telephone Number: (000) 000-0000
Telecopier Number: (000) 000-0000
9. All Proprietary Information furnished by Health Card to Xxxxx is considered
loaned for use solely in connection with the Project, and shall be returned by
Xxxxx to Health Card upon request by Health Card. Xxxxx shall certify that it
has destroyed or returned all copies of the Proprietary Information in its
possession.
10. The term of this Agreement shall be from the date first above written until
the earlier of (i) three (3) years after disclosure of Proprietary Information
to Xxxxx or (ii) written consent from Health Card that the Proprietary
Information no longer needs to be treated as proprietary in accordance with this
Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date and
year first above written.
NATIONAL MEDICAL HEALTH CARD SYSTEMS, INC.
By:
Xxxx X. Xxxxxxx, President
