AGREEMENT
This Agreement made and entered into this 14th day of April, 1994 by and
between National Medical Health Card Systems, Inc. ("Health Card") a New York
corporation with a principal office located at 00 Xxxxxx Xxxx Xxxxx, Xxxx
Xxxxxxxxxx, XX 00000 and P. W. Medical Management, Inc. ("P. W.") a New York
corporation with a principal office located at 00 Xxxxxx Xxxx Xxxxx, Xxxx
Xxxxxxxxxx, XX 00000.
TERMS AND CONDITIONS
Subject to the terms and conditions set forth herein executed by Health
Card and P.W., P.W. agrees to perform certain consulting services for Health
Card as herein described:
1. Services. P.W. shall, in a professional manner provide services
specifically in connection with the day-to-day activities of Health Card,
including, but not limited to, marketing, customer service, financial advice and
general business advice (the "Services") for the fees or compensation defined
below.
2. Fees. Fees for such Services shall not be less than $25,000 annually
and will be paid to P.W. in equal monthly installments.
3. Confidentiality. P.W. acknowledges that P.W. may be provided with
information about, and P.W.'s engagement by Health Card may bring it into close
contact with, many confidential affairs of Health Card and its clients,
including proprietary information about costs, profits, sales, pricing policies,
operational methods, client lists
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and other business affairs and methods, plans for future developments and other
information not readily available to the public, all of which are highly
confidential and proprietary ("Confidential Information"). In recognition of the
foregoing, P.W. covenants and agrees that:
a. P.W. will keep secret all Confidential Information of Health Card
and shall not, directly or indirectly, disclose any Confidential
Information to anyone outside of Health Card, either during or
after the engagement with Health Card, except with Health Card's
prior written consent;
b. P.W. will not make use of any Confidential Information for its
own purposes or the benefit of anyone other than Health Card;
c. P.W. will deliver promptly to Health Card on termination of this
Agreement, or at any time that Health Card may so request, all
memoranda, notes, records, reports and other documents and
materials (and all copies thereof) regarding or including any
Confidential Information, which P.W. may then possess or have
under its control; and
d. P.W. will take no action with respect to the Confidential
Information that is inconsistent with the confidential and
proprietary nature of such information.
Notwithstanding the foregoing, Confidential Information shall not
include information that: (i) is in the public domain not as a result of a
disclosure by P.W.; or (ii) is rightfully in the possession of P.W. prior to
disclosure by Health Card; or (iii) is rightfully received from a third party
not under a confidentiality obligation to Health Card. P.W. acknowledges that
the disclosure of the Confidential Information will cause irreparable injury to
Health Card. Health Card shall, therefore, be entitled to injunctive relief
against P.W. upon a disclosure or threatened disclosure of any Confidential
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Information without a requirement that Health Card prove irreparable harm or the
posting of a bond. Without limitation of the foregoing, P.W. shall advise Health
Card immediately in the event that it learns or has reason to believe that any
person who has had access to Confidential Information has violated or intends to
violate the terms of this Agreement, and will reasonably cooperate in seeking
injunctive relief against any such person.
4. Indemnification. Health Card and P.W. mutually agree to indemnify
each other, to hold each other harmless and defend any action which may be
brought against either party with respect to any claim, demand, cause of action,
debt or liability, including reasonable attorneys' fees, arising out of the
performance or nonperformance by either party of its obligations under the terms
of this Agreement.
5. Termination. If either party should fail materially to fulfill its
obligations under this Agreement, the other party shall have the right to
terminate this Agreement in whole or in part at any time as of which the default
persists, provided that the defaulting party has been given notice of the
default and thirty (30) days from receipt of such notice to cure the default.
The failure to cure such default within the stated period of time shall entitle
the nonbreaching party to terminate this Agreement, in whole or in part, at the
end of such period.
6. Independent Contractor. P.W. is acting in performance of this
Agreement as an independent contractor. Health Card shall not be responsible for
payment of workers' compensation, disability benefits or unemployment insurance,
nor shall Health Card be responsible for withholding or payment of employment
related taxes for P.W.
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7. Non Competition; Non-Interference. P.W. covenants and undertakes
that, during the term of this Agreement and for a period of two (2) years
thereafter, it will not, without the prior written consent of Health Card,
directly or indirectly, and whether as principal or as agent, broker, officer,
director, employee, P.W., or otherwise, alone or in association with any other
person, firm, corporation, or other business organization, carry on, or be
engaged, concerned, or take part in, or render services to, or own, share in the
earnings of, or invest in the stock, bonds, or other securities of any person,
firm, corporation, or other business organization, engage anywhere (A) in a
business which is similar to or in competition with any of the businesses
carried on by Health Card (a "Similar Business"), provided, however, that the
Broker may invest in stock, bonds, or other securities of any Similar Business
(but without otherwise participating in the activities of such Similar Business)
if (A) such stock, bonds, or other securities are listed on any national or
regional securities exchange or have been registered under Section 12 (g) of the
Securities Exchange Act of 1934; and (B) his investment does not exceed, in the
case of any class of the capital stock of any one issuer, two (2%) percent of
the issued and outstanding shares, or in the case of bonds or other securities,
two (2%) percent of the aggregate principal amount thereof issued and
outstanding.
8. Governing Law; Jurisdiction. This Agreement and performance hereunder
shall be governed by the laws of the State of New York. Health Card and P.W.
hereby agree on behalf of themselves and any person claiming by or through them
that the sole
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jurisdiction and venue for any litigation arising from or relating to this
Agreement shall be an appropriate federal or state court located in Nassau
County, New York.
9. Remedies. The rights and remedies of Health Card set forth in this
Agreement are not exclusive and are in addition to any other rights and remedies
available to it in law or in equity.
10. Notices. Any notice provided pursuant to this Agreement, if
specified to be in writing, shall be in writing and shall be deemed given (i) if
by hand delivery, upon receipt hereof; (ii) if mailed, three (3) days after
deposit in the U.S. mails, postage prepaid, certified or registered mail return
receipt requested; or (iii) if by overnight delivery service, one (1) day after
sending. All notices shall be addressed to the parties at the respective
addresses indicated herein, or at such other address that either party may
provide written notice to the other party pursuant to the terms of this Section.
11. Survival. All provisions of this Agreement relating to
confidentiality, non-disclosure and proprietary rights shall survive the
termination of this Agreement.
12. Severability. If any term or provision of this Agreement shall be
invalid or unenforceable to any extent, the remainder of this Agreement shall be
valid and enforced to the fullest extent permitted by law.
13. No Waiver. The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver or limitation of that party's
right to subsequently enforce and compel strict compliance with every provision
of this Agreement.
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14. Entire Agreement. This Agreement, constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and there
are no representations, understandings or agreements relative hereto which are
not fully expressed herein. This Agreement may only be modified by a writing
duly executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first written above.
NATIONAL MEDICAL HEALTH CARD
SYSTEMS, INC.
By:
Xxxxx Xxxxxxx
--------------------------------
Xxxxx Xxxxxxx, President
P. W. MEDICAL MANAGEMENT, INC.
By:
Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx, President
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