TERMINATION AGREEMENT AND RELEASE
THIS AGREEMENT (the "Agreement"), effective as of March 6, 1998, is entered
into by QMED, INC., A Delaware corporation and Interactive Health Management
Corporation collectively ("QMED") and SMITHKLINE XXXXXXX HEALTHCARE SERVICES, a
division of SMITHKLINE XXXXXXX CORPORATION, A Pennsylvania corporation ("SB").
Background
A. SB and QMED (the "Parties") entered into a Strategic Alliance Agreement
(the "Alliance Agreement"), effective as of April 1, 1996, whereby SB and QMED
formed a joint venture (the "Strategic Alliance") under which QMED would utilize
its proprietary On-Line Health Management System for Coronary Artery Disease
(the "Product") and SB would, among other things, market and sell the Product.
B. The Parties believe that it would be in their mutual best interests to
terminate the Alliance Agreement.
C. The Parties also desire to reach a mutually beneficial settlement for
the termination of the Alliance Agreement without the additional time and
expense required by a formal audit and accounting pursuant to the termination
provisions of the Alliance Agreement.
THEREFORE, intending to be legally bound, and for good and valuable
consideration, the adequacy of which is hereby confirmed, the Parties agree to
the following terms:
TERMS
1. Termination. SB and QMED agree that, except for the provisions expressly
reserved hereby, the Alliance Agreement, a copy of which is attached hereto as
Schedule A, and all provisions thereof, are hereby terminated.
2. (a) Expenses, Assignment of Certain Assets and Release. Each of QMED and
SB shall be solely responsible for all of their own expenses arising out of the
Strategic Alliance whether incurred with a third party or internally allocated
on either party's books and records as an expense. SB hereby transfers and
assigns all interest which it may have in future revenues arising from the
Alliance Agreement to QMED. SB further hereby transfers and assigns to QMED all
of its interests in the parties' contract with the San Xxxx Medical Group and
any interest it may have in the contract between Interactive Heart Management
Corporation and CIGNA HCO. (b) Each of QMED and SB hereby unconditionally
releases the other from any obligations and liabilities incurred during or after
the term of the Alliance Agreement arising from the Alliance Agreement, except
for those obligations and liabilities
arising from any term of the Alliance Agreement that survives as specifically
set forth in this Agreement and any obligations specifically set forth herein.
3. Ratification of Certain Sections of Alliance Agreement. SB and QMED
hereby ratify and confirm Sections 4.4, 4.5, 14, 16.2, 16.4, 16.5, 17.3.3 and 19
of the Alliance Agreement and agree that only those provisions enumerated herein
(the "Surviving Terms"), shall continue to be in full force and effect after the
date hereof. Notwithstanding any language to the contrary in the Alliance
Agreement, SB shall have the right to (i) require QMED to prefund the insurance
provided by QMED under Section 19 of the Alliance Agreement or (ii) require QMED
to purchase tail coverage on behalf of SB if SB is not covered by existing QMED
insurance policies, such coverage to be within the limits specified in Section
19 of the Alliance Ageement.
4. Maintenance of and Access to Customer-Related Data. To the extent that
QMED has in its possession certain data, defined and described in Attachment 2
and in Section 4.4 of the Alliance Agreement as Customer Related Data, and which
was, or which is, in the future, obtained during and as part of the use of the
Product by San Xxxx Medical Group as described in the San Xxxx Medical Group
Customer Agreement (the "Data"), SB shall continue to have the rights set forth
in Section 4.4 and, in furtherance thereof, QMED shall transfer to SB and/or
give SB electronic or hard copy access to such data within 90 days' of the date
of a written request for such data made by SB (the "Request") made by the Vice
President of Research and Development, Healthcare Services; provided that, such
Requests for data shall not be made more frequently, or cover data for periods
of time greater than every six months; such Requests shall be detailed in
writing, reasonably sufficient for QMED to estimate the number of computer
programming personnel hours which will be required to complete the Request (the
"Estimate") which Estimate shall be promptly provided to SB, in writing, not
later than 30 days following the date of the Request. In the event the actual
number of programming hours to complete such Request as detailed in the Estimate
exceed 20 programmer hours, then SB shall reimburse QMED for each hour over 20
hours at the rate of $200 per hour. Such reimbursement, it any, shall be
invoiced to SB upon delivery of the data detailed in the Request and shall be
paid by SB within 30 days of receipt of the data in the Request.
5. Amendment of Customer Contracts. Pursuant to Paragraph 2 hereof, SB has
assigned its rights in contracts with Customers to QMED. QMED hereby agrees to
release SB from such Customer contracts and shall make diligent efforts to
notify each third party of the release and obtain amendments to each contract
indicating that SB is no longer a party thereto, and that SB has no further
obligations or liabilities thereon.
6. Non-Infringement. The Parties acknowledge that each of them made
available to the Strategic Alliance or to the Customer Contracts (as defined in
the Alliance Agreement) certain proprietary information, patents, trade secrets,
know-how, systems, technologies, and methods of operations ("Proprietary
Property"). Each party agrees that neither has acquired any right in the other
party's Proprietary Property during the term of the Alliance Agreement, and
neither may utilize the other's Proprietary Property without permission of the
other.
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7. Future Communications. QMED and SB each agree to take no action or make
any public statements which would, directly or indirectly, adversely affect the
business reputation or goodwill of the other (or their affiliates), except as
required by law. Neither QMED nor SB will make negative public comments about
the other and the parties further agree that they will restrict their comments
and public statements regarding this Termination Agreement and related
agreements to the statement set forth in Schedule B which will be the sole media
communications, oral or written, made by either party to explain the
circumstances giving rise to this Termination Agreement.
8. Remedies. Without limiting either party's remedies at law or in equity
for a breach of any Section of this Agreement, the Parties acknowledge that
money damages could be incalculable and an insufficient and an inadequate remedy
for any breach of the obligations of confidentiality under Section 3 (and
Section 16.2 and 16.4 and 16.5 of the Alliance Agreement incorporated therein by
reference) and Section 7 of this Agreement, and that any breach of either
Section would cause irreparable harm. In the event of any breach or threatened
breach of these Sections, in addition to any other remedies which may be
available to the parties at law or in equity, the Parties hereby agree that,
without the requirement of posting a bond or other security, equitable relief,
including preliminary and permanent injunctions and specific performance, is
appropriate and may be sought by the injured party and shall not be opposed. No
failure or delay by either of the Parties in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. In addition, the
parties agree that damages for QMED's failure to comply with any request under
Paragraph 4 hereof could be incalculable or difficult to determine and,
therefore, the parties agree that SB shall be entitled to liquidated damages in
the amount of $15,000 for each failure to comply with delivery and/or access to
data set forth in paragraph 4.
9. Entire Agreement. This Agreement and the provisions of the Alliance
Agreement expressly reserved hereby represent the entire agreement (the "Entire
Agreement") between the Parties with respect to the subject matter hereof and
the Entire Agreement supersedes the Alliance Agreement and any prior agreements
or understandings between the Parties relating to the subject matter hereof.
10. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, SB and QMED have caused this Termination Agreement and
Release to be executed as of the date first above written.
SMITHKLINE XXXXXXX HEALTHCARE SERVICES.
a division of SmithKline Xxxxxxx Corporation
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: V.P. Director, Marketing
QMED, INC.
INTERACTIVE HEALTH MANAGEMENT
CORPORATION
By: /s/ XXXXXXX X. XXX
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Name: Xxxxxxx X. Xxx
Title: President
