NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (Non-Compete Agreement")
made the 30th day of September 1997 by and among Bio- Reference Laboratories,
Inc., a New Jersey corporation ("BRLI")**, Marc D. Grodman, Howard Dubinett,
Charles T. Todd, Jr. and Edward Clayton, key employees of BRLI and/or its
GenCare Division and in the case of each of Messrs. Grodman, Dubinett and Todd,
officers and significant shareholders of BRLI (hereinafter collectively referred
to as the "Employee/Shareholders"), and IMPATH INC., a Delaware corporation (the
"Purchaser").
W I T N E S S E T H:
WHEREAS, the Purchaser is purchasing the customer list and certain other
assets relating to the business of BRLI's GenCare Division (the "Business")
pursuant to that Agreement and Bill of Sale dated as of the date hereof (the
"Agreement") between. the Purchaser and BRLI, and the Purchaser desires to
protect the goodwill of the Business; and
WHEREAS, it is a material inducement to the Purchaser and a condition
precedent to the closing of such purchase that BRLI and the
Employee/Shareholders execute this Non-Compete Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the
premises and the mutual agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated in,
and shall constitute an integral part of, this Non-Compete Agreement and this
Non-Compete Agreement shall be construed in light thereof.
2. Noncompetition.
2.1 In order to induce the Purchaser to enter into the transactions
contemplated hereby, and in consideration thereof, each of BRLI and the
Employee/Shareholders (each, a "Restricted Party") for itself and for himself,
as the case may be, agrees that the Restricted Party shall not, for a period of
thirty (30) months commencing on the date hereof (the "Restricted Period"), be
directly involved as hereinafter defined, in the solicitation of any "Restricted
Customer" to purchase any "Restricted Test" which is a "Restricted Test" for
such "Restricted Customer" as defined in Schedule III of the Agreement or in the
performance of any "Restricted Test" for a "Restricted Customer," except as
permitted by the provisions of Schedule III of the Agreement. The term "directly
involved" means, in the case of BRLI, solicitation by
- --------
For purposes of this Non-Compete Agreement, "BRLI" shall also include the
GenCare Division ("GenCare") and any majority-owned subsidiary or affiliated
entity of BRLI in which BRLI has a 50% or greater ownership interest in the
assets, income or equity, or any subsidiary or affiliated entity which BRLI has
by ownership of voting power, agreement or otherwise, the power to control.
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BRLI or by any BRLI officer, director, employee or other authorized party in its
behalf, of a "Restricted Customer" to purchase a "Restricted Test," or the
performance by BRLI or any such party in its behalf of a "Restricted Test" for a
"Restricted Customer," during the "Restricted Period." The term "directly
involved" means, in the case of each Employee/Shareholder, personal solicitation
of a "Restricted Customer" to purchase a "Restricted Test" or personal
performance of a "Restricted Test" for a "Restricted Customer" during the
"Restricted Period," even if such Employee/Shareholder is employed by some other
entity. BRLI further agrees that in the event it acquires an interest during the
"Restricted Period" in any business which would be included in the definition of
BRLI as set forth as a footnote on page 1 of this Non-Compete Agreement, such
business shall, after the date of the acquisition and during the remainder of
the "Restricted Period," be subject to the same non-competition restrictions as
BRLI pursuant to this Non-Compete Agreement, except to the extent permitted by
Schedule III to the Agreement.
2.2 Each Restricted Party agrees with the Purchaser that if, in any
proceeding, the court or other authority shall refuse to enforce the covenants
herein set forth because such covenants cover too long a period of time, any
such covenant shall be deemed appropriately amended and modified in keeping with
the intention of the parties to the maximum extent permitted by law.
3. Confidentiality, Non-Disclosure and Ownership of Confidential
Information. Each of BRLI and each of the Employee/Shareholders acknowledges
that it or he has or will have access to, or possession or knowledge of some or
all of the following confidential information, namely (a) the names of the
Restricted Customers, (b) the special prices charged by BRLI or GenCare for
performance of Restricted Tests for Restricted Customers to the extent such
prices differ from BRLI and GenCare's published prices for such tests, (c) the
amount of revenues for Restricted Tests performed by GenCare for Restricted
Customers during the three (3) month period ended June 30, 1997, (d) the number
of Restricted Tests and revenues derived therefrom for Restricted Customers to
be provided by the Purchaser to BRLI pursuant to Section 3(v) of the Agreement,
together with related information (except to the extent required to be disclosed
by BRLI in order to enforce its rights under the Agreement), and (e) the terms
of the Agreement and Bill of Sale, the Transition Agreement and this Non-Compete
Agreement (hereinafter collectively called "Confidential Information").
3.1 Neither of BRLI nor any of the Employee/Shareholders shall at
any time divulge, reveal, transfer, reproduce, sell, capitalize upon, use or
otherwise disclose any confidential information to any third party except to the
extent such Confidential Information is legally required to be disclosed (it
being understood that the sales price and the nature of the Assets sold will be
publicly disclosed by BRLI pursuant to a press release as well as disclosure
documents filed under the federal securities laws); and except to the extent
such Confidential Information is required to be disclosed to those BRLI
employees directly involved in servicing or billing Restricted Customers or in
determining who the Restricted Customers are in order to comply with the
Agreement and Bill of Sale, the Transition Agreement and this Non-Compete
Agreement. In addition, each of BRLI and each of the Employee/Shareholders shall
exercise all reasonable efforts and
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precautions to protect Confidential Information from misappropriation, misuse,
disclosure, breach of confidentiality, or other conduct or action inconsistent
with the Purchaser's rights thereto.
3.2 Confidential Information shall not include: (a) any information
which is generally available to the public through no breach of this Agreement;
and (b) any information which is lawfully received from a third party having
rights to disclose the same to BRLI or the Employee/Shareholder, as applicable,
and as to which such third party is free from non-disclosure obligations.
3.3 In the event that either of BRLI or any of the
Employee/Shareholders is required, by oral questions, interrogatories, requests
for information or documents, subpoena, civil investigative demand or similar
process, to disclose any Confidential Information, BRLI or the
Employee/Shareholder, as the case may be, shall provide the Purchaser with
prompt notice thereof so that the Purchaser may seek an appropriate protective
order and/or waive compliance by BRLI or the Employee/Shareholder, as the case
may be, with the provisions hereof; provided, however, that if, in the absence
of a protective order or the receipt of such a waiver, BRLI or the
Employee/Shareholders are, in the opinion of counsel for the Purchaser,
compelled to disclose Confidential Information not otherwise disclosable
hereunder to any legislative, judicial or regulatory body, agency or authority,
or else be exposed to liability for contempt, fine or penalty or to other
censure, such Confidential Information may be so disclosed.
4. Equitable Relief. In the event of a breach or threatened breach of any
of the provisions of this Agreement, each of BRLI and each of the
Employee/Shareholders hereby consents and agrees that the Purchaser shall be
entitled to an injunction or similar equitable relief from any court of
competent jurisdiction restraining such person or entity from committing or
continuing any such breach or threatened breach or granting specific performance
of any act required to be performed by such person or entity under any of such
provisions, without the necessity of showing any actual damage or that money
damages would not afford an adequate remedy and without the necessity of posting
any bond or other security. Nothing herein shall be construed as prohibiting the
Purchaser from pursuing any other remedies at law or in equity which it may
have. The parties hereto agree that if in any proceeding the court or other
authority shall refuse to enforce the covenants herein set forth because such
covenants cover too long a period of time, any such covenant shall be deemed
appropriately amended and modified in keeping with the intention of the parties
to the maximum extent permitted by law.
5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to any
conflict of laws principles thereof which would apply the laws of any other
jurisdiction.
6. Titles. Titles of the Sections of this Agreement are intended solely
for convenience and no provision of this Agreement is to be construed by
reference to the title of any Section.
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7. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
BIO-REFERENCE LABORATORIES, INC.
By:
Name: Howard Dubinett
Title: Executive Vice President
Marc D. Grodman
Howard Dubinett
Charles T. Todd, Jr.
Edward Clayton
IMPATH INC.
By:
Name: John P. Gandolfo
Title: Executive Vice President
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