Exhibit 10.38
CAREADVANTAGE HEALTH SYSTEMS, INC.
CONFIDENTIALITY, INVENTION AND NON-COMPETE AGREEMENT
I, Xxxxxx del Xxxxx, as partial consideration for my employment by
CareAdvantage Health Systems, Inc. or its subsidiaries and affiliates (including
without limitation CareAdvantage, Inc. and Contemporary HealthCare Management,
Inc.) or successors in business (hereinafter individually and collectively the
"Company"), and for the compensation to be paid to me during the continuance of
such employment, enter into this Confidentiality, Invention and Non-Compete
Agreement (hereinafter "Agreement") as follows:
1. Non-Interference With Third-Party Rights
1.1 I understand that my employment with the Company is based on (a) my
representation that I am free to undertake employment with the Company and the
duties and obligations imposed under this Agreement without breach of any other
agreement (whether written or oral) or duty to another party, and (b) my
acknowledgment that the Company is entitled to the benefit of my work. I further
understand that the Company has no interest in using any person's patents,
copyrights, trade secrets or trademarks in an unlawful manner. As such, I shall
not misapply proprietary rights that the Company has no rights to use.
2. Confidentiality of Trade Secrets and Business Information
2.1 I acknowledge that during the course of my employment, I may develop
and obtain access to trade secrets and confidential business information of the
Company. Under the law a "trade secret" is a type of intangible property, and
its theft is a crime in most states. A trade secret generally consists of
valuable, secret information or ideas that the Company collects or uses in order
to keep its competitive edge. Examples of trade secrets are system designs,
computer programs and software, proprietary clinical protocols, operating
processes, and any other proprietary technology. "Confidential business
information," which the Company also treats as proprietary, consists of all
other competitively sensitive information kept in confidence by the Company.
Examples of confidential business information are selling and pricing
information and procedures, business and marketing plans, and internal financial
statements.
2.2 I agree to not use or disclose any trade secrets to which I am exposed
or have access to in the course of my employment with the Company, whether such
trade secrets belong to the Company (including trade secrets embodied or
contained in any Employee Developments as defined in Section 4.1) or to third
parties, during my employment and for so long afterward as the pertinent
information or data remain trade secrets, whether or not the trade secrets are
in written or tangible form, except as required and authorized during the
performance of my duties. I further agree to not use or disclose any
confidential business information to which I am exposed or have access to in the
course of my employment with the Company, whether such information belongs to
the Company (including confidential business information embodied or contained
in any Employee Developments as defined in Section 4.1) or to third parties,
during my employment and for so long afterward as the pertinent information or
data remain confidential business information, whether or not the confidential
business information is in written or tangible form, except as required and
authorized during the performance of my duties.
3. Return of Company Property
3.1 At the request of the Company, and in any event, at the time of
termination of my employment, I will return all records, materials and other
physical objects that pertain to the Company's business or to my employment,
including but not limited to all memoranda, notes, records, drawings, manuals,
documents, papers, computer software and passwords or other identification
materials (including all copies thereof). The foregoing obligation applies to
all materials relating to the affairs of the Company or to any of its customers,
clients, vendors or agents which may be in may possession or control. I will
also leave the Company all materials involving any trade secrets or confidential
business information of the Company.
4. Ownership of Employee Developments
4.1 The Company shall be entitled to own and to control all care
management, medical, technological, operating, and training ideas, processes and
materials that are developed or conceived by me, solely or jointly with others,
at any time during my employment to the extent that they relate to the Company's
then present business or interest (collectively known as "Employee
Developments"). Accordingly, I will promptly disclose and make available to the
Company all work papers, models or other tangible embodiments of such Employee
Developments. Further, I will deliver and assign to the Company all copyrights,
inventions, discoveries, improvements and trade secrets (whether or not
patentable), including all interests in computer programs, arising in connection
with my employment, and I will take whatever steps may be needed to give the
Company the full and exclusive benefit of them. To the fullest extent permitted
by applicable law, all such inventions and developments shall be considered work
made for hire under applicable law, and I shall assign to the Company all other
rights that I may have in any such inventions and developments.
5. Non-Competition
5.1 I agree that during the period commencing on the date hereof to and
including the anniversary of the date on which I cease to be employed by the
Company (the "Non-Competition Period"), I and any entity in which I may be
interested as a partner, trustee, director, officer, employee, shareholder,
option holder, consultant, lender of money or guarantor shall not engage
directly or indirectly in utilization review of inpatient or outpatient care,
managed care services, or disease management services (collectively, "Care
Management Business") in any state (including the District of Columbia) in which
the Company (including its subsidiaries and affiliates) conducts a Care
Management Business; provided, however, that the foregoing shall not be deemed
to prevent me from (a) investing in securities if such class of securities in
which the investment is so made is listed on a national securities exchange or
is issued by a company registered under Section 12(g) of the Securities Exchange
Act of 1934, so long as such investment holdings do not, in the aggregate,
constitute more than 1% of the voting stock of any company's securities, or (b)
making passive investments in which I do not participate in management; and
provided further, however, that the foregoing shall not be deemed to prevent me
from treating patients in the practice of medicine. I further agree that during
the Non-Competition Period, I shall not seek or accept employment, an
affiliation, a consultancy or any other arrangement with any entity with which
Company, at the time of the termination of my employment, has or is negotiating
a business relationship.
5.2 I acknowledge that I have been employed for my special talents and
that my leaving the employ of the Company would seriously hamper the business of
the Company. I further acknowledge that my training, experience and technical
skills are of such breadth that they can be employed to advantage in areas other
than the Managed Care Business during the Non-Competition Period, and
consequently the foregoing obligations will not unreasonably impair my ability
to engage in business activity after the termination of my employment.
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5.3 I agree that I will not, during the Non-Competition Period, hire or
offer to hire or entice away or in any other manner persuade or attempt to
persuade, either in my individual capacity or as agent for another, any of
Company's officers, employees, or agents to discontinue their relationship with
the Company. I further agree that I will not, during the Non-Competition Period,
contract, solicit or divert or attempt to contact or divert from the Company any
business whatsoever by influencing or attempting to influence any customer or
account of the Company at the time of termination of my employment.
Section 6. Other Terms
6.1 This Agreement shall inure to the benefit of, and shall be binding
upon, the Company and its subsidiaries and affiliates, together with their
successors and assigns, and me, together with my executor, administrator,
personal representative, heirs and legatees.
6.2 This Agreement merges with and supersedes all prior and
contemporaneous agreements and understandings (except the Employment Agreement
between the parties executed contemporaneously herewith), whether written or
oral, express or implied, to the extent they contradict or conflict with the
provisions hereof.
6.3 If any term of this Agreement is found to be unlawful or unenforceable
in any respect, the courts shall enforce such term, in whole or in part, and all
other terms of this Agreement to the fullest extent possible.
6.4 Irreparable harm should be presumed if this Agreement is breached in
any way. Damages would be impossible to ascertain, and the faithful observance
of all terms of this Agreement is an essential condition of employment with the
Company. Furthermore, this Agreement is intended to protect the proprietary
rights of the Company in important ways, and even the threat of any misuse of
any proprietary information disclosed to or developed by me under this Agreement
would be extremely harmful because of the importance and value of such material.
In light of these considerations, I agree that a court of competent jurisdiction
should immediately enjoin any breach of this Agreement, upon the Company's
request, and the Company is released from the requirement to post any bond in
connection with a grant of a temporary or interlocutory relief, to the extent
permitted by law.
6.5 My obligations under this Agreement shall remain unaffected by the
termination of my employment with the Company.
6.7 This Agreement shall be governed by and enforced in accordance with
the laws of the State of New Jersey.
CAREADVANTAGE HEALTH SYSTEMS, INC. XXXXXX DEL XXXXX
By: _______________________________ __________________________________
