Termination Agreement
This Termination Agreement made this 7th day of December, 2000 between
IntegraMed America, Inc. ("Corporation") having an office at One Manhattanville
Road, Purchase, New York 10577-2100, Attention: Donald S. Wood, PhD, Senior Vice
President and Chief Operating Officer and Saint Barnabas Medical Center
("Center"), having an office at 95 Old Short Hills Road, Suite 344, West Orange,
New Jersey 07052, Attention: Barry H. Ostrowsky, Esq.
WITNESSETH THAT
WHEREAS, Center and IVF America, Inc. entered into a Service Agreement
dated May 15, 1995, a supplement to such Service Agreement and a letter
agreement dated May 12, 1995 relating to the management of the Livingston
Practices (all of the foregoing and any modifications, amendments or supplements
thereto are hereinafter collectively referred to as "Agreements"); and
WHEREAS, Corporation is the same entity as IVF America, Inc.; and
WHEREAS, Corporation and Center have agreed to terminate the Agreements
effective with the close of business on December 29, 2000 on the terms
hereinafter provided.
NOW THEREFORE, the parties do hereby agree as follows:
1. Termination. Effective at 5:00 p.m. December 29, 2000 ("Effective
Date"), the Agreements shall be deemed terminated and of no further force or
effect, except as herein otherwise specifically provided. From and after the
Effective Date, neither party nor any of its affiliates, successors or assigns
shall be bound or in any way obligated to the other party or any of its
affiliates, successors or assigns under the terms of the Agreements or any other
contracts entered into prior to the date hereof, other than this Termination
Agreement and any instruments executed and delivered pursuant to this
Termination Agreement.
2. Corporation Personnel. Corporation hereby waives and releases any
and all restrictions or limitations on the solicitation for employment and
employment by Center of any and all persons previously and/or presently employed
by Corporation to provide services to or on behalf of Center and described in
the Service Agreement as "Corporation Personnel." Without limiting the
foregoing, Corporation waives any restrictive covenants contained in any
agreements with Corporation Personnel or in the Agreements to the extent they
would in any way limit or restrict Center from soliciting the employment of or
employing any Corporation Personnel. Corporation shall pay all wages, salaries,
stay bonuses, severance payments (to a maximum of $51,233.67, subject to
reduction based upon hirings by Center of Corporation Personnel) and benefits
for all Corporation Personnel thru the Effective Date, including but not limited
to those Corporation Personnel which Center shall elect to employ; subject to
reimbursement in accordance with the Service Agreement (except that the maximum
reimbursement for the stay bonuses shall be $34,500.00 and no reimbursement
shall be made for severance payments made to Corporation Personnel to be hired
by Center).
3. Lease. Corporation is the lessee of Suite 501 located at 101 Old
Short Hills Road, West Orange, New Jersey ("Premises") pursuant to a lease with
Atkins-Kent Motel, Ltd. ("Lessor") dated October, 1991 ("Lease"). Corporation
warrants and represents that the Lease is in full force and effect, that
Corporation is in good standing under the Lease having performed all of its
obligations thereunder including but not limited to the payment of all rents
through the period ending December 31, 2000 and that it has not received any
notice of termination or default under the Lease. Corporation shall assign to
Center on the Effective Date the Lease and all of Corporation's rights
thereunder, including but not limited to the option to renew for an additional
ten year term, which option Corporation warrants and represents it is in full
force and effect. Such assignment shall also include all of Corporation's rights
in and to any furniture, fixtures, equipment, supplies and inventory on the
Premises. Center shall accept such assignment and shall assume all of
Corporation's obligations under the Lease from and after the Effective Date and
shall indemnify and save Corporation harmless from and against all of such
assumed obligations. Center shall use its best efforts to obtain from the Lessor
a release of Corporation from any further obligations and liabilities under the
Lease from and after the Effective Date. Center shall not be required to make
any payments or to agree to any modifications to the Lease in order to obtain
such release for the benefit of Corporation.
4. Books and Records. Corporation acknowledges that all books and
records (including but not limited to electronically stored information)
relating to Center's activities and in the possession of Corporation (including
but not limited to records of the R.E.A.L. Laboratory) are the property of
Center. On or before the Effective Date, Corporation shall deliver to Center all
such books and records, other than employment records of Corporation Personnel
not to be employed by Center. As to employment records of Corporation Personnel
to be hired by Center, Corporation shall require the written consent of any
employee before delivering his/her records. In any event, Corporation shall give
Center access to employment records if reasonably required in connection with
disputes as to compensation, fringe benefits or similar payment matters. Any
electronically stored information shall be delivered in such form as to be
readily accessible to Center through the hardware and software currently used in
the performance of Corporation's services owned by Center and in Center's
possession. Other than as to employment records and records with respect to
laboratories for which it was licensee prior to the Effective Date, Corporation
shall not retain copies of such books and records and acknowledges that all
information concerning Center's operations in Corporation's possession is
proprietary to Center and not to be used by Corporation for any purpose.
Corporation shall deliver to Center, free and clear of any claims or limitations
on use, all software and documentation used in the performance of the services
described in Exhibit 1(a)(1) of the Service Agreement. From time to time during
calendar year 2001, Corporation will make its appropriate personnel available to
Center upon reasonable request and notice to respond to inquiries relating to
the various systems, software, reports and other technical matters used or
previously generated by Corporation in the performance of its services under the
Agreements.
5. Payment. As consideration for the termination of the Agreements and
in specific satisfaction of its payment obligations under paragraph 10(g) of the
Service Agreement, Center shall pay to Corporation on the Effective Date the sum
of $1,440,000.00. In addition, on the Effective Date, Center shall pay to
Corporation the sum of $533,716.00, or such lesser amount which represents the
full outstanding amount due to Corporation for all services rendered for the
period ending October 31, 2000. Payments shall be made by wire transfer or
immediately available funds. Center shall pay via wire transfer or immediately
available funds to Corporation for services rendered pursuant to the Service
Agreement for the months of November and December, 2000 promptly following
receipt of the invoice for such services in customary form, but in no event
later than 10 days after receipt. Corporation acknowledges that no other
payments will be due to it from Center.
6. Releases. On the Effective Date the parties shall exchange releases
releasing each other, together with all of their respective affiliates,
officers, directors, trustees, shareholders, agents, attorneys and employees
from any and all claims, costs, charges and liabilities whatsoever, except those
arising under this Termination Agreement. Upon delivery by A.R.T. Institute of
New York and New Jersey, Inc. of a general release in favor of Corporation, its
officers, directors, shareholders, agents, attorneys and employees, the release
to be delivered by Corporation shall also specifically extend to A.R.T.
Institute of New York and New Jersey, Inc., its officers, directors,
shareholders, agents, attorneys and employees.
7. Transition. The parties agree to cooperate in effecting a smooth
transition of the management services described in the Service Agreement from
Corporation to Center to be completed on or before the Effective Date. In
particular, Corporation shall direct its employees to provide all assistance
reasonably required to effect such transition, shall provide Center with all
required software passwords and shall arrange for the identification of Center's
designees as the contact persons with all software support entities. In
addition, Corporation shall cooperate and take all reasonable steps required to
assist Center in and to facilitate the transfer or reissuance to Center of the
license of the R.E.A.L. Laboratory.
8. Notices. Any notices hereunder shall have been deemed to have been
duly given only if in writing and mailed by registered or certified mail (return
receipt requested), or by United States Express Mail or other next business day
receipted commercial delivery service, postage and delivery charge prepaid to
the parties at the addresses set forth hereinabove or specified by like notice;
provided that notices of a change of address shall be effective only upon
receipt thereof. Any notice to Center shall also be copied to Bruce D. Shoulson,
Esq., Lowenstein Sandler, PC, 65 Livingston Avenue, Roseland, New Jersey 07068.
Any notice to Corporation shall also be copied to Robert E. Levy, Esq., Scarinci
& Hollenbeck, LLC, 500 Plaza Drive, P.O. Box 3189, Secaucus, New Jersey 07096.
9. Warrant of Authority. Each individual executing this Termination
Agreement warrants and represents that he/she has been fully authorized to
execute and deliver this Termination Agreement as and for the act of the party
in whose name he/she has signed and that such party is fully bound to the terms
hereof.
10. Benefits of Termination Agreement. This Termination Agreement shall
be binding upon and inure to the benefit of the parties and their respective
successors, assigns, legal representatives and heirs.
11. Prior Agreements; Amendments. As of the effective date, this
Termination Agreement supersedes all prior agreements and understandings between
the parties, and may not be amended, altered, changed, or terminated orally. No
amendment, alteration, change, or attempted waiver of any of the provisions
hereof shall be binding without the written consent of both parties, and such
amendment, alteration, change, termination or waiver shall in no way affect the
other terms and conditions of this Termination Agreement, which in all other
respects shall remain in full force.
12. Construction of Termination Agreement. The failure to insist upon
strict compliance with any of the terms, covenants or conditions contained
herein shall not be deemed a waiver of such terms, covenants, or conditions, nor
shall any waiver or relinquishment of any right at any one or more times be
deemed a waiver of relinquishment of such right at any other time or times.
13. Applicable Law; Severability; Consent to Jurisdiction.
(a) The parties agree that this Termination Agreement shall be
governed and construed in accordance with the laws of the State of New Jersey to
the fullest extent permitted by law, without regard to the application of
conflict of laws rules. If any portion of the provisions hereof shall to any
extent be invalid or unenforceable, the remainder of this Termination Agreement,
or the application of such portion or provisions in circumstances other than
those in which it is held invalid or unenforceable, shall not be affected
thereby, and each portion or provision of this Termination Agreement shall be
valid and enforced to the fullest extent permitted by law, but only to the
extent the same continues to reflect fairly the intent and the understanding of
the parties expressed by this Termination Agreement taken as a whole.
(b) Each party to this Termination Agreement hereby
irrevocably consents and agrees that any legal action, suit or proceeding
arising out of or in any way in accordance with this Termination Agreement shall
be instituted or brought in the courts of the State of New Jersey or in the
United States Court for the District of New Jersey, and by execution and
delivery of this Termination Agreement each party hereby irrevocably accepts and
consents to, for itself and in respect to its property the exclusive
jurisdiction of such courts and to all proceedings in such courts.
(c) Each party to this Termination Agreement further agrees
that final judgment against it in any such legal action, suit or proceeding
shall be conclusive and may be enforced in any other jurisdiction, within or
outside the United States of America.
14. Headings. Section headings are not part of this Termination
Agreement and are included solely for convenience and are not intended to be
full or accurate descriptions of the consents thereof.
15. Waiver of Breach. The waiver by either party of a breach of
violation of any provision of this Termination Agreement shall not operate as,
or be construed to be, a waiver of any subsequent breach of the same or other
provision hereof.
16. Entire Agreement. This Termination Agreement constitutes the entire
Termination Agreement between the parties. Neither party shall be entitled to
any benefits other than those specified herein. No oral statements or prior
written material not specifically incorporated herein shall be of any force and
effect and no change in or additions to the Termination Agreement shall be
recognized unless incorporated herein by amendment, such amendment(s) to become
effective on the date stipulated in such amendment(s).
17. Confidentiality.
(a) Corporation and its affiliates, on the one hand, and
Center, on the other hand, each agrees to treat as confidential and to require
its respective affiliates, subsidiaries, employees, contractors and agents who
provided services in connection with Center's IVF Program (as defined in the
Service Agreement) to treat as confidential, all information received by it in
the course of the fulfillment of the terms of the Agreements, including but not
limited to information of a technical, scientific or business nature, from the
other party, as it pertains to the IVF Program, and without the prior written
permission of the non-disclosing party, each further agrees not to:
(i) disclose any part of such information to any person
or organization; or
(ii) utilize any part of such information except for the
purposes of this Termination Agreement;
(b) Nothing in subsection (a) above shall be applicable to
any information that:
(i) is or becomes known publicly or known in the
scientific community through no fault of the disclosing party; or;
(ii) is learned by the disclosing party from a third
party legally entitled to disclose that information;
(iii) was already known to the disclosing party at the
time of disclosure to it by the other party;
(iv) with respect to business information and business
data, authorized disclosure to the Corporation's or the Center's Auditors, third
party insurers and payors or regulating bodies.
(c) The Center acknowledges that the Corporation and its
subsidiaries and affiliates, have rights and goodwill in its logos, designs,
service marks, trade names and trademarks ("Marks"). The Center agrees that such
Marks shall remain the sole property of the Corporation, its subsidiaries or
affiliates and shall not be used by the Center after termination of the
Agreements.
18. Medicare Audit Requirements. Pursuant to 42 U.S.C. Section
1395x(v)(I)(II), to the extent applicable, the Corporation, until the expiration
of four (4) years after the Effective Date, shall make available for Medicare
audit purposes the books, documents and records of the Corporation that are
necessary to certify the nature and extent of sums paid to the Corporation
pursuant to the Agreements upon the written request of the Secretary of the
Department of Health and Human Services of the United States, or upon request of
the Comptroller General of the United States, or any of their duly authorized
representatives.
19. Assignment. This Termination Agreement may not be assigned by
either of the parties hereto without the express written consent of such
assignment by the other and upon the written assumption by the assignee of all
obligations of the assignor.
20. Counterparts. This Termination Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same document.
21. Miscellaneous.
(a) Use of the Name of the Center: The name, "Saint Barnabas
Medical Center," "Saint Barnabas Outpatient Center," or any trade name of the
IVF Program, or any portion or variation thereof (excluding any trade name,
related to IVF America, Inc.) (collectively the "Trade Names") or any statement
which may implicitly refer directly or indirectly to the Trade Names, shall not
be used in any manner by or on behalf of Corporation.
(b) Use of Name of A.R.T. Institute: The name "A.R.T.
Institute of New York & New Jersey, Inc." or any variation thereof shall not be
used in any manner or on behalf of Corporation.
IN WITNESS WHEREOF, the parties have caused this Termination Agreement
to be executed and delivered the day and year first above written.
Saint Barnabas Medical Center
By: ____________________________
IntegraMed America, Inc.
By:_____________________________
Donald S. Wood, PhD
Senior Vice President and
Chief Operating Officer