EMPLOYEE COVENANTS
This Agreement dated 12/7, 1998 by and between Xxxxxxxx X. X'Xxxxxx residing at
00 Xxxxx Xxxxx Xxxx, Xxxxxxxx, XX. hereinafter referred to as Employee and
National Medical Health Card Systems, Inc. located at 00 Xxxxxx Xxxx Xxxxx, Xxxx
Xxxxxxxxxx, X.X. 00000, hereinafter referred to as Employer.
Whereas, Employer shares its premises with various affiliates including but not
limited to Sandata, Inc and Medical Arts Office Services Inc. Employee will have
access to Confidential Matter as set forth in section 6 hereof (currently
existing and/or hereafter created parents, subsidiaries, and affiliates,
including but not limited to those mentioned in the pre-existing sentence shall
be referred to herein each individually and collectively as "Affiliates") not
only of Employer, but of Affiliates as well; and
Whereas, Employer, and Affiliates, are in the businesses involving the
application of innovative computer technology to solve business problems by
reviewing operations, defining needs, recommending solutions, developing,
installing, and supporting computer systems and software, and providing computer
related services; and
Whereas, Employee is to provide services to Employer,in a position of confidence
and trust; and
Whereas, Employer, shall provide Employee with valuable training and experience;
and
Whereas, Employee will have access to Confidential Matter, as hereinafter
defined, including, but not limited to, trade secrets and proprietary
information of Employer, and Affiliates; and
Now, therefore, Employer and Employee agree, in consideration of the mutual
covenants and agreements contained herein and other valuable consideration, as
follows.
1. PROVISION OF SERVICES:
On the terms and conditions herein set forth, Employer, hereby engages
Employee, and Employee agrees to be so engaged, as part of the staff of
Employer. Employee shall perform such duties and discharge such
responsibilities as shall be assigned to him/her from time to time by the
management of Employer, in a manner satisfactory to Employer. Employee
hereby agrees to devote his/her full business time to the business of
Employer.
2. COMPENSATION:
Employer, agrees to compensate Employee for the services which are
rendered satisfactorily at a mutually agreed upon rate and as long as there
is no violation of this Agreement. Such compensation shall be subject to
periodic review and adjusted by Employer, in such manner and amount as
Employer, deems proper, without necessity for a written amendment or
modification hereto.
3. FRINGE BENEFITS:
Employer, shall provide Employee fringe benefits of the same nature
and kind as are provided to other staff at a similar level of experience
and responsibility. Such fringe benefits shall be subject to periodic
review and adjustment by the management of Employer, in such manner and
amount as it deems proper and are subject to change by Employer as long as
such change affects employees similarly situated in a similar manner.
4. TERMINATION:
Either party hereto may terminate this Agreement with or without cause
at any time upon notice to the other. The time from beginning of employment
until termination of employment shall be referred to as the Employment
Period.
5. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE:
Employee represents and warrants to Employer that Employee is under no
contract, restriction or obligation which is inconsistent with execution of
this Agreement or the performance of his/her duties hereunder. Employee
hereby agrees to indemnify Employer and Affiliates in connection with any
of the following:
(1) Any breach of the foregoing representations and
warranties; (ii) any lawsuit or other legal proceeding in which it is
claimed that the employee has breached any trust, confidence or duty of
loyalty, etc.; (iii) any action or matter relating to the above
representations and warranties.
6. CONFIDENTIAL INFORMATION:
Employee hereby acknowledges that in the course of Employee's
employment by Employer, Employee will be exposed to valuable confidential
and trade secret information of Employer and Affiliates ("Confidential
Matter"). Employee agrees to treat all such information as confidential and
to take all necessary precautions against disclosure of such information to
third parties.
All confidential information which Employee may now possess or may
obtain during the Employment Period relating to the business of the
Employer or Affiliates, their customers or suppliers shall not be
published, disclosed or made accessible by him/her to any other person firm
or corporation either during or after termination of his/her employment, or
be used by him/her except in the business and for the benefit of the
Employer or Affiliates unless the Employer or Affiliates as the case may
be, shall have given its prior written permission. employee shall deliver
all tangible evidence of such confidential information to the Employer or
Affiliates prior to or at the termination or his/her employment.
7. LOYALTY TO EMPLOYER:
In consideration of (a) the unique and valuable services it is
expected that Employee will render to Employer and (b) the knowledge
Employee will obtain of the business, services, customers, trade secrets
and other proprietary information relating to the business of the Employer
and Affiliates and their customers and suppliers, including, without
limitation, computer programs, Employee agrees that he/she will not during
the Employment Period, and for a period of one (1) year following, whether
his/her employment terminates with or without cause, whether voluntarily or
not on the part of the Employee, participate in (as hereinafter defined in
this Section 7) any other business or organization which competes with, or
is engaged in business similar to that of the Employer or Affiliates. The
term "Participates In" shall mean "directly or indirectly, for his/her own
benefit or for, either or through any person, firm or corporation, own
manage, operate control, loan money to, or participate in the ownership,
management, operation, or control of, or be connected as a director,
officer, employee, partner, consultant, agent, independent contractor or
otherwise with, or acquiesce in the use of his/her name in."
During the Employment Period and, for a period of two (2) years
thereafter, Employee will not directly or indirectly reveal the name of,
solicit, or interfere with or endeavor to entice away from the Employer or
Affiliates any of their customers, employees or consultants. For purposes
of this Agreement, the term Customers shall mean (i) any person, firm,
corporation, joint venture, partnership or other entity which does business
with the Employer or Affiliates at any time during the Employment Period or
has done business with the Employer or Affiliates within 2 years
immediately prior to the commencement thereof (ii) any prospects which have
been or are being solicited by the Employer or Affiliates or who have
approached the Employer or Affiliates to engage their service or whose name
appears on any list of prospects maintained by the Employer or Affiliates
at any time during the Employment Period.
8. COVENANTS TO REPORT; PATENTS, ETC.:
a. The Employee shall promptly communicate and disclose to Employer
all inventions, discoveries, improvements and new writings, in any
form whatsoever, (hereinafter "Inventions") including, without
limitation, all software, programs, routines, techniques, procedures,
training aides and instructional manuals conceived, developed or made
by him/her during his/her employment by Employer, and for a period of
two years thereafter whether solely or jointly with others, and
whether or not patentable or copyrightable, (A) which relate to any
matters or business of the type carried on or being developed by
Employer or Affiliates, or (B) which result from or are suggested by
any work done by him/her in the course of his/her employment by
Employer. The Employee shall also promptly communicate and disclose to
Employer all other data obtained by him/her concerning the business or
affairs of Employer or Affiliates in the course of his/her employment
by
Employer.
b. The Employee will assign to Employer all right in the Inventions
and will assist Employer or its designee during and subsequent to
his/her employment, at Employer's sole expense, in filing patent
and/or copyrights for, such Inventions in any and all countries, and
will assign to the Employer all such patents and/or copyrights which
may issue thereon, said Inventions to be and remain the sole and
exclusive property of Employer or its designee whether or not patented
and/or copyrighted.
c. Any Invention which is competitive with the business conducted by
Employer or Affiliates at the date of termination or business activity
being developed by Employer or Affiliates at termination, conceived,
developed or made by the Employee within one (1) year of the
termination of his/her employment, whether such termination of
employment is voluntary or involuntary, shall be deemed to have arisen
out of and been conceived, developed or made by the Employee during
his/her employment by Employer, unless established to have been
conceived, developed or made after the termination of such employment.
9. ENFORCEMENT:
Since a breach of the provisions of this Section 6, 7 & hereof could
not adequately be compensated by money damages, the Employer and/or
Affiliates shall be entitled, in addition to any other right and remedy
available to it, to an injunction restraining such breach or a threatened
breach, and in either case, no bond or other security shall be required in
connection therewith, and Employee hereby consents to the issuance of such
injunction and in any application for injunction will not plead a defense
of adequate remedy at law. Employee agrees that the provisions of this
Section 9 are necessary and reasonable to protect the Employer and
Affiliates in the conduct of their businesses. If any restriction contained
in Sections 6, 7 & 8 shall be deemed to be invalid, illegal or
unenforceable, then the remainder of such Sections shall be enforceable to
the fullest extent deemed appropriate by such court.
10. MISCELLANEOUS:
a. This Agreement and all provisions hereof shall bind and inure to
the benefit of Employer, Employee and their respective heirs,
successors, personal representatives and assigns.
b. This Agreement and all questions arising hereunder shall be
governed by the laws of the State of New York.
c. If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, such provision may be severed and enforced
to the extent possible and such invalidity, illegality or
unenforceability shall not affect the remainder of this Agreement.
d. This constitutes the entire Agreement between the parties with
respect to the subject matter; all prior agreements, representations,
statements, negotiations and undertakings are superseded hereby.
e. No amendment to this Agreement shall be effective unless it is in
writing and signed by both parties, except as specifically provided
herein.
f. All of Employees obligations hereunder shall inure to the benefit
of Affiliates of Employer and the provisions of Sections 6, 7, 8 & 9
may be enforced by Affiliates.
g. The failure by the Employer or Affiliates at any time or times to
require strict performance by Employee of any provisions hereof shall
in no manner affect its right at a later time to enforce the same. No
waiver by the Employer or its Affiliates of any condition or the
breach of any term contained in this
Agreement, whether by conduct or otherwise in any one or more
instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach or a waiver of any
other condition or breach of any other term of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement effective the
day and year first above set forth.
National Medical Health Card Systems, Inc
BY: /s/ Xxxxxxx Xxxxxx
Employee: /s/ Xxxxxxxx X. X'Xxxxxx
