AGREEMENT
AGREEMENT, dated as of January 1, 1997 ["Agreement"] by and between (i)
IntegraMed, Inc., f/k/a IVF America Inc., a Delaware corporation, ["INMD"] and
(ii) Women's Medical and Diagnostic Center, Inc., f/k/a INMD ACQUISITION CORP.,
a Florida corporation and wholly-owned subsidiary of INMD ["WM&DC"] and (iii)
Xxxxxx Xxxxxxxxxx, M.D., an individual having a principal place of business at
Office Park West, 000 X.X. 00xx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxx 00000
["Notelovitz"] [collectively referred to as the "Parties"].
W I T N E S S E T H
WHEREAS, INMD, WM&DC, Notelovitz and others were parties to an
Agreement and Plan of Merger dated June 7, 1996 ["Merger Agreement"]; and
WHEREAS, pursuant to paragraph 2.2(b) of the Merger Agreement, INMD has
provided Notelovitz with a promissory note which provides for quarterly payments
of thirty-seven thousand five hundred dollars ($37,500.00), commencing September
1, 1996, with simple interest of 4.16%, ["Notelovitz Note Payments"], some of
which have been paid; and
WHEREAS, INMD, WM&DC and Notelovitz are parties to a Physician
Employment Agreement dated June 7, 1996 ["Physician Employment Agreement"]; and
WHEREAS, INMD and Notelovitz are parties to an Employment Agreement dated June
7, 1996 whereby Notelovitz became the Medical Director of INMD's Menopause
Division ["Medical Director Agreement"]; and
WHEREAS, pursuant to the Merger Agreement, WM&DC was the surviving
corporation and operates a medical practice specializing in the provision of
gynecological services, including treatment of peri-and post menopausal women
[the "Practice"]; and
WHEREAS, pursuant to the Merger Agreement, one of the assets acquired,
and currently owned by, WM&DC is a group of certain research contracts, in the
nature of clinical trials, in which Notelovitz is the principal investigator
["Practice Clinical Trials"], a schedule of which is here attached as Schedule
A; and
WHEREAS, the Physician Employment Agreement provides for Notelovitz to
provide Medical Services, as such term is used in the Physician Employment
Agreement ["Medical Services"], to the Practice; and
WHEREAS, Notelovitz has expressed a desire to terminate the Medical
Director Agreement and Physician Employment Agreement; and
WHEREAS, the Parties desire to effectuate a termination of the Medical
Director Agreement and Physician Employment Agreement in an orderly fashion, so
as to insure a transition in the rendition of Medical Services and the
performance of the Practice Clinical Trials, to and at the Practice and mitigate
any adverse impact on the assets, opportunities and on-going business of WM&DC;
and
WHEREAS, Drs. Xxxxxxx and Xxxxxx ["Clinician(s)"], pursuant to the
direction of INMD, are providing Medical Services at the Practice, having
commenced doing so on January 2, 1997 ["Clinician(s) Starting Date"]; and
WHEREAS, the Parties desire to amend, in part, the Physician Employment
Agreement and to terminate, except as herein provided, the Medical Director
Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the parties agree as follows:
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1. Notelovitz Debt.
(a) The Parties acknowledge that, pursuant to the paragraph 3(a)(ii)of
the Medical Director Agreement, and pursuant to paragraph 3(a) and Schedule B of
the Physician Employment Agreement, advances have been made by WM&DC and/or INMD
to Notelovitz in the amounts of $47,435.90 and $71,153.85, respectively, and
such amount, in the aggregate of $118,589.75 (One hundred and eighteen thousand
five hundred and eighty nine 75/100 dollars) is owed by Notelovitz to WM&DC,
and/or INMD ["Notelovitz Debt"]. The Notelovitz Debt specifically excludes prior
overpayments in salary made to Notelovitz, in the amount of $16,025.54 (Sixteen
thousand twenty five and 54/100 dollars), which amount shall remain due and
owing to INMD and which shall be paid by Notelovitz prior to February 28, 1997.
(b) As of December 31, 1996, the Notelovitz Debt, for advances against
salary or profit, is established as the sum certain delineated in paragraph (a)
hereof. Notwithstanding this, if the Notelovitz Debt is not retired pursuant to
paragraph 9 of this Agreement, Notelovitz shall have the right to contest the
amount of the Notelovitz Debt.
2. Duties of Notelovitz, INMD and WM&DC.
(a) Notelovitz, INMD and WM&DC shall, in cooperation with each other,
use their best efforts to recruit a physician, duly licensed to practice
medicine in the State of Florida, with experience in the conduct of research,
including the performance of clinical trials ["Research Scientist"]. Such
Research Scientist shall commence providing Medical Services and conducting
research, including clinical trials, at WM&DC ["Research Scientist Starting
Date"] at the direction of INMD.
3. Clinical Duties of Notelovitz.
(a) Notelovitz shall perform all duties under the Physician Employment
Agreement, paragraphs 2(a)(i),(ii) and (iii), 2(b) and 2(c), shall duly conduct
all Practice Clinical Trials, and use his best efforts to protect and preserve
any and all clinical and research opportunities of WM&DC.
(b) Notelovitz shall use his best efforts to familiarize the
Clinician(s) or Research Scientist with the Practice and effectuate a transition
of the provision of Medical Services and the performance of Practice Clinical
Trials for the Practice to such Clinician(s) and/or Research Scientist. These
efforts shall include:
(1) familiarizing the Clinician(s) and/or Research Scientist with
the routine, administrative procedures, customs, usage and
records of the Practice;
(2) instructing, where necessary, the Clinician(s) and Research
Scientist, as to the operation, use and characteristics of any
and all medical equipment;
(3) reasonably cooperating in the scheduling, coverage and
treatment matters so as to incorporate such Clinician(s) and
Research Scientist in the treatment of patients at the
Practice;
(4) familiarizing the Research Scientist with the protocols,
methods, procedures, record keeping, reporting and interfacing
with the sponsor, with respect to all Practice Clinical
Trials;
(5) introduction of all personnel of the Practice to the
Clinician(s) and Research Scientist and the encouragement of
such personnel to respond to the reasonable requests and
direction of the Clinician(s) and Research Scientist.
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(6) conduct himself, in the provision of Medical Services, in a
manner consistent with the courteous sharing of the office
space of the Practice with the Clinician(s) , Research
Scientist, and WM&DC personnel and in keeping with the
standards of care and courtesy with respect to all patients.
(7) introduce the Clinician(s) and Research Scientists to all
healthcare professionals, who by way of full-time or part-time
service, consultation or referrals provide (or have in the
past provided) any type of diagnostic or medical treatment, or
patient education to the patients at WM&DC ["Healthcare
Professionals"] and acquaint such Clinician(s) and Research
Scientist with all administrative procedures, methods and
procedures for referrals, consultations or treatment by such
Healthcare Professionals.
(8) comply with all reasonable policies, directives, bylaws, rules
and regulations of WM&DC. Notelovitz acknowledges that WM&DC
shall have final authority over: (a) the acceptance or refusal
to treat any patient; and (b) the amount of the fee to be
charged for all Medical Services rendered by Notelovitz to
patients at the Practice, so long as such fees are lawful and
reasonable. Notwithstanding the foregoing, Notelovitz may
refuse to treat any patient whom, on the basis of his
reasonable medical judgment, should not be treated.
(c) The aggregate of responsibilities detailed in Paragraph 3,
subparagraphs (a) and (b)(1)-(8) of this Agreement shall hereafter be referred
to in the aggregate as "Clinical Duties".
(d) Notelovitz agrees to devote his professional time, effort and
ability to the performance of his Clinical Duties at WM&DC during the Clinical
Term; subject to paragraph 16, Notelovitz shall devote not less than an
aggregate of forty (40) full professional days to the performance of such
clinical duties, during the Clinical Term of this Agreement as defined in
paragraph 5. Full professional days shall mean that at the end of the Clinical
Term, the aggregate number of hours worked during the aggregate of the full
professional days shall be no less than two hundred and eighty (280).
4. Research and Research Transition Duties of Notelovitz.
(a) Notelovitz shall use his best efforts to have the Research
Scientist substituted as the principal investigator of each of the Practice
Clinical Trials, which effort shall include, but not be limited to, introduction
of such Research Scientist and/or an INMD corporate representative to the
sponsor, providing any necessary recommendations, and the completion and
execution of any forms or correspondence requested by each such sponsor. The
effective date(s) of the substitution of the Research Scientist as the principal
investigator for each such Practice Clinical Trial shall be the date(s) on which
INMD or WM&DC receives written confirmation, from the sponsor of each Practice
Clinical Trial, that the Research Scientist is the principal investigator or
additional investigator of such Practice Clinical Trial ["Substitution Date"].
Any clinical trials which have not reached a Substitution Date as of the end of
the Clinical Term, as defined in paragraph 5(a) of this Agreement, shall be
deemed "Non-Substituted Trials".
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(b) During the Research Term, as defined in paragraph 5(b) of this
Agreement, with respect to any Non-Substituted Trials, the following shall
occur:
(1) Notelovitz shall continue to perform the duties set forth in
paragraphs 3(b)(4), 3(b)(8) and 4(a) above; and
(2) Notelovitz shall conduct such Non-Substituted Trials as INMD
shall designate and shall do so in the capacity of a
consultant to WM&DC, utilizing the facilities and patients of
the Practice to accomplish same.
(3) The aggregate of duties described in paragraph 4(a) and 4(b)
(and its subparagraphs) shall be referred to as "Research
Duties."
(c) During the Consultancy Term, as defined in paragraph 5(c) of this
Agreement, as to any Non-Substituted Trials, the following shall occur:
(1) Notelovitz agrees to continue as principal investigator of
such Non- Substituted Trial(s) as INMD shall designate, and to
consult, oversee and/or communicate with the sponsor, as
required by the sponsor of such Non-Substituted Practice
Clinical Trial, provided, however, that the actual clinical
work and/or record keeping is performed by the Clinicians
and/or Research Scientist at WM&DC; (2) Notelovitz shall use
his best efforts to have the sponsors of each such
Non-Substituted Trial consent to such arrangement. (3) The
aggregate of duties described in paragraph 4(c)(1) and (2)
shall be referred to as "Consultant Duties."
5. Term.
(a) Notelovitz shall perform his Clinical Duties pursuant to paragraph
3 hereof from the date of this Agreement through and including March 31, 1997
["Clinical Term"].
(b) Notelovitz shall perform his Research Duties pursuant to paragraph
4 hereof both during the Clinical Term and until the earlier of (1) the date
when all Practice Clinical Trials reach a Substitution Date or (2) May 31, 1997
["Research Term"].
(c) Notelovitz shall perform his Consultant Duties until all of the
Non-Substituted Trials designated by INMD reach completion ["Consultancy Term"].
6. Compensation of Notelovitz.
(a) During the Clinical Term of this Agreement, Notelovitz shall be
compensated as follows:
(1) As of the date of the execution of this Agreement, paragraph 3
and Schedule B of the Physician Employment Agreement and
paragraph 3 of the Medical Director Agreement shall become
wholly inoperative, and compensation of Notelovitz shall
hereafter be governed solely by the provisions of this
Agreement.
(2) As compensation for the performance, by Notelovitz, of the
Clinical Duties and Research Duties during the Clinical Term,
WM&DC shall pay Notelovitz a salary, bi-monthly, at a rate of
$1154 (eleven hundred and fifty-four dollars) per full
professional day.
(b) After the conclusion of the Clinical Term, and during the remainder
of the Research Term and the Consultancy Term, Notelovitz shall be compensated
as follows:
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(1) Notelovitz shall be compensated at the rate of $170 (one
hundred and seventy dollars) per hour and shall devote such
hours as are reasonably required and reasonably scheduled, and
shall account to WM&DC's Executive Director for the time
spent. Notwithstanding the hourly rate herein delineated, for
each portion of a day in which Notelovitz works at the request
of INMD, he shall be paid the larger amount of (a) the hourly
rate multiplied by the number of hours worked; or (b) a
minimum compensation of $510.00 (five hundred and ten
dollars).
(2) Such compensation shall be paid to Notelovitz bi-monthly, as a
consultant's fee. 7. Prior Agreements. (a) With the exception
of paragraphs 3, 9, 10 which are superseded by this Agreement,
and paragraph 12 (which is amended in part), the Physician
Employment Agreement shall remain in full force and effect
during the Clinical Term of this Agreement; upon the
conclusion of the Clinical Term, the Physician Employment
Agreement shall terminate, except that Section 12 thereof
shall continue in full force and effect, as amended, if at
all, by this Agreement. (b) As of the date of the execution of
this Agreement by Notelovitz, Notelovitz shall resign from the
Board of Directors of INMD, and the Medical Director Agreement
is deemed terminated as a result of Notelovitz's voluntary
resignation and neither Notelovitz nor INMD shall have further
obligations thereunder. Notwithstanding this paragraph, all
obligations, promises or covenants in the Medical Director
Agreement, Section 7, shall continue pursuant to their terms.
8. Termination.
(a) This Agreement shall terminate upon the earliest occurrence of any
of the following:
(1) Upon Notelovitz's performance of Clinical, Research and
Consultancy Duties for the Clinical, Research and Consultancy
Terms; or
(2) Upon the death or disability of Notelovitz; or
(3) Upon Notelovitz's loss, suspension or limitation of Hospital
courtesy privileges at a hospital in the geographic area of
the Practice; or
(4) Upon the conviction of Notelovitz of a felony or suspension,
revocation or non-renewal of his license to practice medicine.
(b) Upon termination of this Agreement, as herein provided, neither
party shall have any further obligation hereunder except for (i) obligations
accruing prior to the date of termination and (ii) obligations, promises or
covenants which are expressly made to extend beyond the term of this Agreement.
9. Retirement of Notelovitz Debt.
(a) The Notelovitz Debt shall be completely retired, and there shall be
no money owed on account of prior advances made pursuant to the Physician
Employment Agreement and the Medical Director's Agreement, on the earliest date
of the following:
(1) Notelovitz has materially performed all Clinical Duties and
Research Duties during the Clinical Term and all Practice
Clinical Trials have reached a Substitution Date; or
(2) Notelovitz has materially performed Clinical Duties during the
Clinical Term and all Research Duties during the Research
Term.
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(b) In the event that (1) Notelovitz does not materially perform all
Clinical Duties for the Clinical Term, or (2) does not materially perform all
Research Duties for Research Term, then none of the Notelovitz Debt shall be
retired.
10. Breach by Notelovitz. In the event of a material breach by Notelovitz
of this Agreement, INMD shall, upon two weeks prior written notice to Notelovitz
of the details of such breach and a failure of Notelovitz to cure within such
time period, be entitled to pursue the Notelovitz Debt and any and all remedies,
including any damages for lost profits, claimed to have resulted from a breach
of duty or obligation under this Agreement occurring on or after January 1, 1997
and shall be entitled to offset, against such claims, payments under the
Notelovitz Notes.
11. Breach by INMD. In the event of a material breach by INMD of this
Agreement, Notelovitz shall, upon two weeks written notice to INMD and a failure
of INMD to cure within such time period, be entitled to pursue any and all
remedies, including any damages for lost profits, claimed to have resulted from
a breach of duty or obligation under this Agreement.
12. Covenants Not to Compete. In recognition of the reasonableness of the
prior covenants not to compete and the significant consideration paid therefor,
Article VIII, Section 8.4 of the Merger Agreement, Section 12 of the Physician
Employment Agreement and Section 7 of the Medical Director Agreement ["Covenants
Not to Compete"] and Article VIII, Sections 8.1 and 8.2 of the Merger Agreement
["Restrictive Covenants"] shall survive this Agreement and remain in full force
and effect. The Covenants Not to Compete shall have a (1) year duration which
shall commence at the earlier of (a) the end of the Clinical Term if, and only
if, all Practice Clinical Trials have reached a Substitution Date; or (b) the
conclusion of the Research Term. The four year term of the Restrictive Covenants
shall remain as stated in the Merger Agreement and are not altered or amended by
this Agreement. Notwithstanding the continued force and effect of the Covenants
Not to Compete and Restrictive Covenants, in the event that Notelovitz completes
without material breach which is not cured within two weeks of written notice of
the details of such breach the (a) Clinical Term; and (b) the Research Term, and
there are no written notices of breach or continued breach served by INMD which
are not subsequently cured within two weeks of written notice of the details of
the breach, said Covenants Not to Compete and Restrictive Covenants shall be
deemed amended only to the extent to permit the following:
(a) During the term of the Covenants Not to Compete and Restrictive
Covenants, Notelovitz shall be permitted to practice medicine, as a sole
practitioner ["Notelovitz Solo Practice"], at a location no closer than fifteen
(15) radial miles from all INMD locations, including but not limited to WM&DC;
and
(b) The Notelovitz Solo Practice, during the term of the Covenants Not
to Compete and Restrictive Covenants,, shall not operate under any name, either
assumed or corporate, that depicts it, in any manner, as a center, clinic or
multi-disciplinary treatment facility for climacteric medicine or for the
treatment of women who are menopausal, pre- menopausal or peri-menopausal or as
a specialty service in climacteric medicine; and
(c) The Notelovitz Solo Practice, during the term of the Covenants Not
to Compete and Restrictive Covenants, shall not advertise or communicate itself
to be a center, clinic or multi-disciplinary treatment facility for the practice
of climacteric medicine or for the treatment of women who are menopausal,
pre-menopausal or peri-menopausal; and
(d) The Notelovitz Solo Practice, during the term of the Covenants Not
to Compete and Restrictive Covenants, shall not conduct or supervise any
clinical trials and shall not consult with any physicians (other than WM&DC
physicians) performing clinical trials; and
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(e) Notelovitz may consult with Pharmaceutical Companies for the
purpose of advising or designing protocols for Clinical Trials but only if he
does not become an investigator or principal investigator for any such Clinical
Trials for a term of one year from the date of the first consultation.
(f) The Covenants Not to Compete and Restrictive Covenants shall
otherwise continue in full force and effect; provided, however that nothing in
the Covenants Not to Compete shall restrict or limit the activities which
Notelovitz may engage in outside the borders of the United States of America
provided that such activities are not performed for any individual, entity,
organization or institution providing clinical services inside the United States
of a nature which, if performed by Notelovitz, would be in violation of the
Covenants Not to Compete.
13. Signing Bonus. INMD shall pay Notelovitz a one time "signing bonus" of
ten- thousand dollars ($10,000.00), on the date INMD receives this Agreement
executed by Notelovitz.
14. Arbitration. Any and all claims, disputes, or controversies arising
under, out of, or in connection with this Agreement, the Physician Employment
Agreement, the Medical Director Agreement or the Merger Agreement, or any breach
thereof, shall be determined by binding arbitration in the State of Florida,
city of Gainesville [hereafter "Arbitration"]. The party seeking determination
shall subject any such dispute, claim or controversy to the American Arbitration
Association, and the rules of commercial arbitration of the selected entity
shall govern. The Arbitration shall be conducted and decided by three (3)
arbitrators, unless the parties mutually agree, in writing at the time of the
Arbitration, to fewer arbitrators. Each party shall bear its own expenses and
one-half the expenses and costs of the arbitrators. Notwithstanding this
paragraph, the parties shall be free to make an application to compel
Arbitration, confirm or vacate an arbitral award, otherwise enforce this
paragraph, or enforce the Covenants Not to Compete by injunctive relief or
otherwise, or remedy, both in equity or at law, a breach of such Covenants Not
to Compete in the Courts of the State of Florida, and nothing in that paragraph
shall be deemed a waiver of any procedural, evidentiary or equitable rights with
relation to such controversies.
15. Cooperation In the event of any claims, suits or governmental
investigations, arising out of or relating to the Practice, in which INMD, WM&DC
and/or Notelovitz shall be named or involved, whether or not pending during the
term of this Agreement, Notelovitz and INMD and WM&DC agree to fully cooperate
with each other in the defense of such suit, claim or investigation. Such
cooperation shall include, by way of example but not limitation, meeting with
defense counsel, the production of any documents in their possession for review,
participation in discovery, response to subpoenae and the coordination of any
individual defense with counsel for INMD and WM&DC or Notelovitz. Notelovitz
shall, as soon as practicable, deliver to INMD and WM&DC copies of any
summonses, complaints, suit letters, subpoenae or legal papers of any kind,
served upon him or his attorneys. This obligation to cooperate in the defense of
any such claims or suits shall survive the termination, for whatever reason, of
this Agreement, and nothing in this paragraph shall obligate the parties to pay
any legal fees incurred by the other.
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16. Vacation and Speaking Engagements. During the Clinical Term of this
Agreement, Notelovitz shall nonetheless be entitled to planned absences from the
Practice ["Absences"], to be used by him, in his sole discretion, for either
speaking engagements, outside professional activities, and/or vacation time;
provided however, that in no event shall such Absences be for greater than an
aggregate of 17 business days. Notelovitz shall provide ten (10) days written
notice of such Absences. Notelovitz shall be paid for only ten (10) days of such
Absences. Thereafter, the compensation of Notelovitz shall be reduced by an
amount representing $1154.00 (eleven hundred and fifty-four dollars) per day of
Absence. During the Research Term, Notelovitz shall be entitled to thirteen (13)
consecutive weekdays of Absence, but shall not be paid for such time period.
17. Notelovitz Ancillary Income. Any remuneration, honorarium, or income,
other than fees or income derived from Notelovitz's provision of Medical
Services, derived from speaking engagements, publications, teaching, service on
boards of directors, or testimony for litigation- related proceedings
["Ancillary Activities"] shall be the sole property of Notelovitz. Any and all
expenses or costs relating to such Ancillary Activities shall be the sole
responsibility of Notelovitz.
18. Professional Liability Insurance and Benefits.
(a) INMD and/or WM&DC shall continue to maintain professional liability
insurance on behalf of Notelovitz during the Clinical, Research and Consultantcy
Terms of this Agreement. Upon end of the such Clinical, Research and
Consultantcy Terms, or in the event of a termination of Notelovitz's services as
the result of a material breach by Notelovitz which remains uncured after two
weeks of written notice detailing the breach, INMD's obligation to maintain such
insurance shall cease and Notelovitz shall be solely responsible for maintaining
professional liability insurance on his own behalf. If Notelovitz establishes a
clinical medical practice, he shall maintain such insurance, for a period of two
years following the termination of this Agreement, in amounts of not less than
$1.0 million per occurrence, $3.0 million in the aggregate, or in such amounts
the premium for which does not exceed the premiums paid by Notelovitz for
professional liability insurance in the year prior to the effective date of the
Merger Agreement.
(b) Notelovitz shall be eligible to participate in INMD's medical,
dental, life and long-term disability insurance and any 401(k) or other
retirement plans ["Benefits"], participation in any such plans to be in
accordance with their respective terms and conditions, during the Clinical Term
of this Agreement. Thereafter, such Benefits shall cease.
19. Medical Records. All medical records of patients to whom Notelovitz
provides, or has provided, Medical Services on behalf of WM&DC during the term
of either this Agreement or the Physician Employment Agreement shall be the
property of WM&DC.
20. Billing. All fees for Medical Services rendered by Notelovitz on behalf
of INMD or WM&DC hereunder shall be billed and collected by WM&DC or its
designee. In consideration of the payment to Notelovitz of the compensation
described herein, all receivables and collections attributable to Medical
Services provided by Notelovitz to WM&DC patients are and shall become the
property of WM&DC and Notelovitz agrees immediately to turn over to WM&DC any
such payments received by Notelovitz during the term hereof. Notelovitz hereby
authorizes WM&DC or its designee to xxxx for Medical Services provided hereunder
and agrees to execute any and all assignments or other documents that may be
necessary or appropriate to permit WM&DC or its designee to carry out all
billing and collection functions. Notelovitz agrees that he shall not otherwise
submit bills for, seek remuneration for or collect fees for Medical Services
provided hereunder. Notelovitz shall look solely to WM&DC for compensation for
his professional Medical Services provided hereunder.
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21. Proxy. Pursuant to Section 5.5 of the Merger Agreement, Notelovitz
delivered to INMD a proxy ["Proxy"]. The provisions of Section 5.5 of the Merger
Agreement shall continue except that the Proxy shall expire September 30, 1997.
22. National Menopause Foundation. As of the date of this Agreement,
Notelovitz hereby resigns as President and Chief Executive Officer of the
National Menopause Foundation, Inc. ["NMF"] and INMD has no further obligations
to appoint him to a management position or to fund NMF, pursuant to paragraph
5.08 of the Merger Agreement or otherwise. The parties, having failed to reach a
Stockholder's Agreement pursuant to Section 5.09 of the Merger Agreement, shall
hereafter be under no obligation to do so.
23. Cooperation Regarding Publicity. The parties acknowledge that this
Agreement represents a fully consensual and amicable separation of interests and
that during the Term of this Agreement and thereafter each party covenants that,
in communicating with third parties, they shall not, by action or word, defame,
criticize or condemn the actions, conduct or motives of the other. Each party
recognizes that this covenant represents a material obligation of both parties
under this Agreement, the breach of which may impact adversely on the business
interests of the non-breaching party.
24. Notices. All notices, requests, demands, and other communications
provided for in this Agreement or required among the parties in connection with
the Agreement shall be in writing and shall be deemed to have been given at the
time when personally delivered, mailed at any United States Post Office via
registered or certified mail, prepaid, return receipt requested, or sent by
overnight delivery services against receipt, addressed to the party at the
address set forth below or such other address as such party may designate by
notice:
If to Physician: With a copy to:
Xxxxxx Xxxxxxxxxx, M.D., Ph.D. Xxxxxxx X. Xxxxxxxxxx, P.A.
0000 X.X. 00xx Xxxx. Xxxxxxx Xxxx Xxxxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000 Suite 305
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000-0000
If to INMD, at: With a copy to:
INMD Acquisition Corp. IntegraMed America, Inc.
Xxxxxx Xxxx Xxxx Xxx Xxxxxxxxxxxxxx Xxxx
000 X.X. 36th Terrace Purchase, New York 10577-2100
Xxxxxxxxxxx, Xxxxxxx 00000 Attention: Xxxxxx Xxxx
Attention: Executive Director Chief Financial Officer
25. Amendment. No modification, amendment, or addition to this Agreement,
nor waiver of any of its provisions, shall be valid or enforceable unless in
writing and signed by all parties.
26. Assignment. No assignment or delegation of this Agreement or the rights
and obligations hereunder shall be valid without the specific written consent of
all parties.
27. Severability. Each provision in this Agreement is intended to be
severable, and may be modified by any court of competent jurisdiction to the
extent necessary to make such provision valid and enforceable. If any term or
provision hereof shall be determined by a court of competent jurisdiction to be
illegal or invalid for any reason whatsoever in whole or in part, such provision
shall be severed from this Agreement and shall not effect the validity of the
remainder of this Agreement.
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28. Waiver; Consent. No consent or waiver, express or implied, by either
party hereto, of any breach or default by the other party in the performance by
the other of its obligations hereunder, shall be valid unless in writing, and no
such consent or waiver shall be deemed or construed to be a consent or waiver to
or of any other breach or default on the performance by such other party of the
same or any other obligation of such party hereunder. Failure on the part of
either party to complain of any act or failure to act of the other party or to
declare the other party in default, irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights hereunder.
The granting of any consent or approval in any other instance by or on behalf of
Notelovitz and/or INMD or WM&DC shall not be construed to waiver or limit the
need for such consent in any other or subsequent instance.
29. Conflict. If there is a conflict between this Agreement, the Merger
Agreement, the Physician Employment Agreement and/or the Medical Director
Agreement, the provisions of this Agreement shall control. Any portion of the
Merger Agreement, Physician Employment Agreement or Medical Director Agreement
not specifically superseded by the terms of this Agreement remains in full force
and effect, unless terminated pursuant to its terms. 30. Expenses. Each party
shall bear its own expenses in connection with this Agreement and all
obligations to be performed by it hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement the date
first above written.
INTEGRAMED AMERICA
By: /s/Xxxxxx Xxxx
------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
WOMEN'S MEDICAL & DIAGNOSTIC CENTER, INC.
By: /s/Xxxxxx Xxxx
------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
/s/ Xxxxxx Xxxxxxxxxx
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XXXXXX XXXXXXXXXX, M.D.
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