**Exhibit 10.12**

 

**STRATEGIC MARKETING ALLIANCE AGREEMENT**

 

THIS STRATEGIC MARKETING ALLIANCEAGREEMENT (the “Agreement”) is entered into as of of December 31, 2001, by andbetween ROCHE DIAGNOSTICS CORPORATION, an Indiana corporation (“RDC”)BIO-REFERENCE LABORATORIES, INC., a New Jersey corporation (“BRLI”), andCareEvolve.com, Inc, a New Jersey Corporation (“CareEvolve”).  (RDC, BRLI and CareEvolve are sometimesreferred to herein collectively as the “Parties” and each individually as a“Party.”)

 

**PRELIMINARYSTATEMENTS**

 

A.            RDC is engaged in the business of manufacturing,marketing and selling diagnostic equipment, reagents and other related suppliesand has an established customer and referral base of hospitals, laboratories,alternative site testing facilities and health care professionals.

 

B.            BRLI, through its wholly owned subsidiary CareEvolve,markets and provides a physician-patient and physician-payer electroniccommunications service that is designed, among other things, to communicatelaboratory orders and results, e-mail prescriptions and refills, provide payereligibility, process payment claims, manage disease programs for specifieddisease states, and provide other physician services (the “CareEvolveService”).

 

C.            The Parties have determined that it is in theirrespective best interests to enter into a strategic marketing alliance, wherebyRDC would promote and provide support for the CareEvolve Service in exchangefor a portion of the revenues generated thereby.

 

D.            The Parties desire to enter into this Agreement in orderto establish the terms of this alliance.

 

**TERMS**

 

NOW, THEREFORE, in considerationof the forgoing premises and the covenants set forth in this Agreement, andother good and valuable consideration, the sufficiency of which is herebyacknowledged, the Parties, intending to be legally bound, agree as follows:

 

  1.                           StrategicAlliance.  The Parties herebyestablish a strategic marketing alliance (the “Alliance”), which shall begoverned by the terms set forth in this Agreement.

 

  2.           Obligationsof RDC.  RDC shall have thefollowing obligations in connection with the Alliance:

 

  (a)                         Employees.  During the Term, RDC shall cause itsCorporate Account Directors and Field Marketing Managers to be trained byCareEvolve pursuant to Section 3(b) of this Agreement and will thereafter causeits Corporate Account Directors and Field Marketing Managers to market theCareEvolve Service along with other RDC services and products.

 

  (b)                         Paymentof Expenses.  Within thirty days ofthe date of this Agreement, RDC shall pay to CareEvolve the sum of$1,000,000.00, which sum shall be applied by CareEvolve in the manner specifiedby the Steering Committee (as hereinafter defined). This sum shall be used byCareEvolve during the term of this Agreement solely to fund those ongoingoperating expenses of CareEvolve set forth in the Steering Committee-approvedAnnual Budget described in Section 5 (the “CareEvolve Operating Expenses”),including the expenses associated with the employment by CareEvolve of the employeesspecified in Section 3(a). RDC shall be obligated to make no other paymentswith respect to the activities of the Alliance during the term, except for suchother expenses as may be approved in advance in writing by the SteeringCommittee.

 

  (c)                         ManagerialSupport.  During the Term, RDC shallprovide general managerial support to the Alliance and to CareEvolve, at nocost or expense to CareEvolve.  Forpurposes of this section and Section 3(c) of this Agreement, “generalmanagerial support” shall be deemed to mean general advice and consultation bymembers of the mid-level to senior management of the party providing suchsupport. “General managerial support” shall not be construed to mean theconduct of day-to-day operations of the CareEvolve business.

 

  (d)                         SalesEfforts.  During the Term, RDC shallcause its sales personnel to exercise commercially reasonable efforts to marketand sell the CareEvolve Service.

 

  (e)                         Exclusivity.  During the Term, RDC shall not (1) directlyor indirectly develop and/or market any other portal solution providing theservice of lab order test result reporting, (2)  enter into any other arrangements with CareEvolve competitors forportal solutions for lab order test result reporting, or (3) enter into anyagreement or arrangement with MedUnite [**Insert proper corporatename of MedUnite**] that couldreasonably be deemed to  interfere withthe relationship of CareEvolve with MedUnite.

 

  3.                           Obligationsof BRLI and CareEvolve.  BRLI andCareEvolve shall have the following obligations in connection with theAlliance:

 

  (a)                         Employmentof CareEvolve Employees. During the Term, CareEvolve shall employ the followingemployees on a full-time basis: (a) one Marketing Manager and (b) threemarketing, sales, support and training persons. These employees (collectively,the “CareEvolve Marketing Employees”) shall dedicate their time exclusively tothe business of marketing the CareEvolve Service on a full-time basis.  CareEvolve shall be solely responsible forthe payment of all expenses associated with the employment of the CareEvolveMarketing Employees, including but not limited to salaries, fringe benefits,withholding of taxes and other similar expenses.  The CareEvolve Marketing Employees shall be under the control anddirection of CareEvolve; however, that (1) the Steering Committee shall adviseand assist in the hiring and performance assessments of the CareEvolveMarketing Employees, (2) no employee shall be hired as a CareEvolve MarketingEmployee without the consent of the Steering Committee and (3) the SteeringCommittee may, at any time, require the termination and replacement of anyCareEvolve Marketing Employee.

 

  (b)                         Training.  Promptly following the execution of thisAgreement, CareEvolve shall provide one-time comprehensive technical and salestraining on the CareEvolve Service the Care Evolve Marketing Employees and allof RDC’s Corporate Account Directors and Field Marketing Managers.  CareEvolve shall provide supplemental continuingeducation and training from time to time thereafter, as directed by theSteering Committee.  This training shallbe provided at no cost to CareEvolve, BRLI or RDC; the cost of such trainingshall not be considered a CareEvolve Operating Expense.

 

  (c)                         ManagerialSupport.  During the Term, BRLIshall provide general managerial support to the Alliance and to CareEvolve, atno cost or expense to CareEvolve.

 

  (d)                         SalesEfforts.  During the Term, BRLI andCareEvolve shall cause its sales personnel to exercise commercially reasonableefforts to market and sell the CareEvolve Service.

 

  (e)                         Recordsand Access.  During the Term and fora period of eight years following the expiration or termination of the Term,CareEvolve shall prepare, preserve and maintain reasonably detailed, completeand accurate records of all marketing activities for, sales/commercializationreferrals for, gross revenues realized in connection with, and costs andexpenses incurred in connection with, the CareEvolve Service, the Alliance andCareEvolve.  CareEvolve shall provide toRDC or its designated agents, upon reasonable request, but no more than onetime in any given six month period of time or upon termination of thisAgreement as herein described in Paragraph 7, complete access to such recordsfor any purpose whatsoever.  RDC shallbe entitled to make and retain copies of such records, at RDC’s expense.

 

  (f)                          Exclusivity:  During the Term, neither BRLI nor CareEvolvewill enter into any agreement, arrangement or relationship relating to thesale, marketing, promotion of the CareEvolve services with any other diagnosticcompany that competes directly or indirectly with RDC for a similar strategicmarketing Agreement concerning the CareEvolve Service.

 

  (g)                         NoOther Agreements; No Sale of Equity. During the Term, without the priorwritten consent of RDC, neither BRLI nor CareEvolve shall enter into anagreement or arrangement with any other party respecting the distribution ofthe income or revenue of CareEvolve, nor shall CareEvolve issue anyadditional equity or debt securities to any party other than BRLI.

 

  4.                           Paymentsto RDC. During the Term, CareEvolve shall pay to each RDC and BRLI anamount equal to 50% of the net after-tax income generated in each quarter, ineach case not to exceed 50% of the net after-tax cash (computed withoutdeduction of any payments or accruals made by CareEvolve to RDC and BRLIpursuant to this paragraph 4), generated through the sale, licensing or othercommercialization of the CareEvolve Service, unless the parties have jointlyagreed through the Steering Committee to waive disbursement in the bestinterests of the operations of CareEvolve. On or before the fifteenth day nextfollowing the last day of the last month of each calendar quarter (commencingin the second calendar quarter of the Term), CareEvolve shall deliver to RDCand BRLI an accounting of the net after-tax income received from thecommercialization of the CareEvolve Service during the prior calendar quarter,and shall deliver payment contemporaneously with the delivery of theaccounting.

 

  5.                           SteeringCommittee; Annual Budget.

 

  (a)                 SteeringCommittee Responsibilities and Membership.  During the Term, the Parties each shall appoint three managementrepresentatives to a committee that will oversee the Alliance and the activitiesof CareEvolve, the strategic direction and management of the Alliance andCareEvolve, and the performance of the Parties hereunder (the “SteeringCommittee”).  The full SteeringCommittee shall meet at least quarterly to discuss implementation of thisAgreement, issues relating to the continued development, marketing, promotion,distribution and sale of the CareEvolve Service, and such other commercialissues relating to the Alliance and CareEvolve that either Party believes isappropriate for discussion by the Steering Committee.  In addition to the full Steering Committee, RDC and BRLI eachshall appoint one member of their respective Steering Committee panels to meeton a more regular basis to oversee the regular operations of CareEvolve.  The Steering Committee shall be responsiblefor all commercially or strategically significant decisions affecting theAlliance or CareEvolve, including, without limitation, the establishment andreview of the Annual Budget per Section 5(b) and the disbursement of funds paidby RDC to cover CareEvolve Operating Expenses in accordance therewith.  RDC’s initial appointees to the SteeringCommittee are:  Dick Aderman, Tom Adkinsand David Quick.  BRLI’s initialappointees to the Steering Committee are: Marc Grodman, Morton Topfer and Richard Faherty.  A Party may change one or more of itsrepresentatives to the Steering Committee as well as the day-to-day appointeeby providing notice to the other Party in accordance with Section 15(d).

 

  (b)                 AnnualGeneric Budget.  Each year, theSteering Committee shall be responsible for setting an annual generic budget(the “Annual Budget”) for the coming year’s CareEvolve operations, settingforth the planned CareEvolve Operating Expenses for the year.  The Annual Budget for each year of the Termshall be agreed upon by no later than the anniversary date of this Agreement onwhich such year begins, provided, however, that the Annual Budget for theinitial year of this Term shall be agreed upon by the Steering Committee withinthirty days of execution of this Agreement. The Steering Committee shall reviewthe Annual Budget quarterly and make adjustments, if necessary, at the time ofsuch review. CareEvolve may pay any CareEvolve Operating Expenses which areprovided for in the Annual Budget, as adjusted quarterly, without furtherapproval of the Steering Committee. Any expense payments which are not providedfor in the Annual Budget (including any payments for operating expenses) mustbe pre-approved in writing by the Steering Committee.

 

  6.                           Term;Termination.  The term of thisAgreement (the “Term”) shall commence on the date hereof and continue for aperiod of five years, unless earlier terminated in accordance with Section 7.

 

  7.                           Termination.  This Agreement may be terminated:

 

  (a)                         MutualAgreement.  Immediately, upon themutual written agreement of the Parties;

 

  (b)                         AnniversaryDates.  On the first or anysubsequent anniversary of the date of this Agreement, by either Party, uponwritten notice to the other Party provided at least thirty, but no more thansixty, days prior to the applicable anniversary date;

 

  (c)                         MaterialBreach.  Immediately, by thenon-breaching Party, upon written notice if a Party materially breaches thisAgreement and such breach is not curable, or if such breach is curable withinthe thirty day period following the provision of written notice of such breachto the breaching Party, if such breach is not cured within the thirty dayperiod;

 

  (d)                         Bankruptcy.  Immediately, by either Party upon writtennotice, if the other Party (i) becomes insolvent; (ii) makes an assignment forthe benefit of its creditors; (iii) seeks or obtains protection under thebankruptcy laws of the United States or any state, whether voluntarily orinvoluntarily; (iv) develops or has developed a plan of arrangement orcomposition agreement as a result of a general meeting of its creditors; (v)has appointed a receiver, custodian, trustee or like officer to take possessionof all or any substantial part of its assets; (vi) has all or any substantialpart of its assets attached, executed or seized; or (vi) admits in writing itsinability to pay its debts as they mature;

 

  (e)                         Terminationof Reseller Agreement.  Immediately,by RDC, if that certain Vendor Agreement made and entered into by and betweenMedUnite, Inc., BRLI and CareEvolve, dated December 17, 2001, attached heretoas Exhibit A, (the “MedUnite Reseller Agreement”) expires or isterminated for any reason whatsoever, unless the MedUnite Reseller Agreement isterminated with CareEvolve as a direct result of the acts, actions or failuresto act on the part of RDC.

 

  (f)                          SteeringCommittee Deadlock.  Immediately, byeither party, if the Steering Committee is unable to reach agreement on amaterial business issue relating to the CareEvolve business, and aftersubmission of the issue to management discussions in accordance with Section15(c) the Parties are unable to resolve the deadlock.

 

  8.                           Effectof Termination.

 

  (a)                         TerminationGenerally.  Except as expresslyprovided in Section 8(b) below, termination of this Agreement for any of thecauses specified in Section 7 shall not relieve either Party from theperformance of any commitment or obligation hereunder which survivestermination, or relieve either Party from the payment of monies owed to theother Party pursuant to the terms of this Agreement.  Furthermore, the terminating Party shall retain all of its rightsand remedies at law and in equity upon such termination.

 

  (b)                         Returnon Investment. If RDC terminates this Agreement at any time for any of thecauses specified in Sections 7(c), (d) or (e), or if BRLIterminates this Agreement pursuant to Section 7(b) effective during thefirst two years next following the execution date of this Agreement, or ifeither Party terminates this Agreement pursuant to Section 7(f) withintwo years of the date of this Agreement, then:

 

  (i)                          ImmediateReturn of Invested Capital.  Withinthirty days of termination, CareEvolve shall return to RDC an amount equal tothe monies advanced to CareEvolve by RDC less all budgeted CareEvolve OperatingExpenditures approved by the Steering Committee for the ongoing operation ofCareEvolve and paid on or prior  to thedate of termination pursuant to Section 4); and

 

  (ii)                         Entitlementto Revenue Stream.  After the dateof termination, and during the five-year period following execution of thisAgreement, or at least two years after termination, whichever shall be longer,CareEvolve shall pay to RDC amounts equal to 50% of the net after-tax incomegenerated through sales, licensing or commercialization of the CareEvolveService to RDC Accounts (as hereinafter defined) after collections.  Such amounts shall be calculated, paid andaccounted for quarterly in the manner contemplated in Section 4.  As used herein, “RDC Accounts” meansCareEvolve Service customers introduced to BRLI/CareEvolve by RDC personnel, orcustomers acquired by BRLI/CareEvolve as a result of significant sales effortsby RDC personnel.

 

  (iii)                        License.  Effectively immediately and automaticallyupon any termination of the type described in this Section 7(b), RDCshall have, and CareEvolve hereby grants to RDC, an irrevocable, worldwide,perpetual, royalty-free, nonexclusive license to use (including to reproduce,modify, create derivative works, distribute, transmit, publicly perform,publicly display, and sublicense) the CareEvolve Service (including, withoutlimitation, the CareEvolve IP (as hereinafter defined)). After suchtermination, at its option, RDC may assume the defense of any actual orthreatened infringement or claim of infringement of any patent, copyright,trademark, trade secret, privacy, publicity, or other proprietary right of anythird party based on the CareEvolve Service or the CareEvolve IP or its use byRDC, or follow such other course of action is it reasonably deems necessary toprotect its interest; provided, however, that RDC shall be indemnified by BRLIfor all reasonable costs incurred in such course of action in accordance with Section12.

 

  9.                           Representationsand Warranties of RDC.  RDC herebyrepresents and warrants to BRLI as follows:

 

  (a)                         Authority;Binding Agreement; Noncontravention. RDC has full power and authority to execute and deliver this Agreementand to perform its obligations hereunder. This Agreement constitutes the valid and binding obligation of RDC,enforceable in accordance with its terms. Neither the execution and delivery of this Agreement nor theconsummation of the actions and transactions contemplated herein will, with orwithout the passage of time or the delivery of notice,  (i) conflict with, result in a breach of orconstitute a default under any note, bond, mortgage, indenture, license,franchise, permit, agreement, lease or other instrument or obligation to whichRDC is a party or bound, (ii) violate any statute, ordinance or law or anyrule, regulation, order, writ, injunction or decree of any court,administrative agency, commission or other governmental entity orinstrumentality, or (iii) violate any provision of the charter, bylaws or otherconstituent documents of RDC.

 

  (b)                         Organization.  RDC is a corporation duly organized andvalidly existing under the laws of the State of Indiana.

 

  (c)                         Consents.  No notice to, filing with or authorization,consent or approval of any governmental entity or third party is necessary forthe consummation by RDC of the actions and transactions contemplated by thisAgreement.

 

  10.                         Representationsand Warranties of BRLI.  BRLI herebyrepresents and warrants to RDC as follows:

 

  (a)                         Authority;Binding Agreement; Noncontravention. BRLI has full power and authority to execute and deliver this Agreementand to perform its obligations hereunder. This Agreement constitutes the valid and binding obligation of BRLI,enforceable in accordance with its terms. Neither the execution and delivery of this Agreement nor theconsummation of the actions and transactions contemplated herein will, with orwithout the passage of time or the delivery of notice,  (i) conflict with, result in a breach of or constitutea default under any note, bond, mortgage, indenture, license, franchise,permit, agreement, lease or other instrument or obligation to which BRLI is aparty or bound, (ii) to the best of its knowledge, violate any statute,ordinance or law or any rule, regulation, order, writ, injunction or decree ofany court, administrative agency, commission or other governmental entity orinstrumentality, or (iii) violate any provision of the charter, bylaws or otherconstituent documents of BRLI.

 

  (b)                         Organization;Stock Ownership.  BRLI is acorporation duly organized, validly existing and in good standing under thelaws of the State of New Jersey. BRLI is the sole shareholder of CareEvolve.

 

  (c)                         Consents.  No notice to, filing with or authorization,consent or approval of any governmental entity or third party is necessary forthe consummation by BRLI of the actions and transactions contemplated by thisAgreement.

 

  (d)                         Ownershipof Intellectual Property.  BRLI, orCareEvolve, owns all right, title and interest, free and clear of allencumbrances, in and to all inventions (whether patentable or unpatentable andwhether or not reduced to practice), improvements,  patents, trademarks (registered and unregistered), service marks,trade dress, trade names, mask works, domain names and URL’s, trade names,copyrights (registered and unregistered) and other intellectual property usedor useful to BRLI in connection with CareEvolve and the development, marketingand sale of the CareEvolve Service (collectively, the “CareEvolve IP”). To thebest of its knowledge, information and belief, no person has challenged, or toBRLI’s knowledge has threatened to challenge, the validity of or BRLI’s rightsto the CareEvolve IP.  To the best ofits knowlede, information and believ, no act or omission of BRLI, including,without limitation, the use, production, marketing, licensing or sale of theCareEvolve Service generally, or the CareEvolve IP specifically, violates,infringes or misappropriates, or has violated, infringed or misappropriated,any intellectual property rights of any other person or entity.  BRLI or CareEvolve has the sole andexclusive right to bring actions for the violation, infringement ormisappropriation of the CareEvolve IP.

 

  11.                         Representationsand Warranties of CareEvolve. CareEvolve hereby represents and warrants to RDC and BRLI as follows:

 

  (a)                         Authority;Binding Agreement; Noncontravention. CareEvolve has full power and authority to execute and deliver thisAgreement and to perform its obligations hereunder.  This Agreement constitutes the valid and binding obligation ofCareEvolve, enforceable in accordance with its terms.  Neither the execution and delivery of this Agreement nor theconsummation of the actions and transactions contemplated herein will, with orwithout the passage of time or the delivery of notice,  (i) conflict with, result in a breach of orconstitute a default under any note, bond, mortgage, indenture, license,franchise, permit, agreement, lease or other instrument or obligation to whichCareEvolve is a party or bound, (ii) to the best of its knowledge, violate anystatute, ordinance or law or any rule, regulation, order, writ, injunction ordecree of any court, administrative agency, commission or other governmentalentity or instrumentality, or (iii) violate any provision of the charter,bylaws or other constituent documents of CareEvolve.

 

  (b)                         Organization.  CareEvolve is a corporation duly organized,validly existing and in good standing under the laws of the State of NewJersey. BRLI owns 100% of the issued and outstanding equity securities ofCareEvolve.

 

  (c)                         Consents.  No notice to, filing with or authorization,consent or approval of any governmental entity or third party is necessary forthe consummation by CareEvolve of the actions and transactions contemplated bythis Agreement.

 

  (d)                         Ownershipof Intellectual Property. CareEvolve or BRLI owns all right, title and interest, free and clear ofall encumbrances, in and to all inventions (whether patentable or unpatentableand whether or not reduced to practice), improvements,  patents, trademarks (registered andunregistered), service marks, trade dress, trade names, mask works, domainnames and URL’s, trade names, copyrights (registered and unregistered) andother intellectual property used or useful to CareEvolve in connection withCareEvolve and the development, marketing and sale of the CareEvolve Service(collectively, the “CareEvolve IP”). No person has challenged, or toCareEvolve’s knowledge has threatened to challenge, the validity of orCareEvolve’s rights to the CareEvolve IP. No act or omission of CareEvolve, including, without limitation, theuse, production, marketing, licensing or sale of the CareEvolve Service generally,or the CareEvolve IP specifically, violates, infringes or misappropriates, orhas violated, infringed or misappropriated, any intellectual property rights ofany other person or entity.  CareEvolveor BRLI has the sole and exclusive right to bring actions for the violation,infringement or misappropriation of the CareEvolve IP.

 

  12.                         IndemnificationProvisions for the Benefit of BRLI and CareEvolve.  RDC shall indemnify, defend and holdharmless BRLI and CareEvolve and their agents, shareholders, officers,directors, affiliates, successors and assigns from and against any and allactions, suits, proceedings, claims, demands, orders, damages, dues, penalties,fines, costs, liabilities, obligations, losses, expenses and fees (including,without limitation, attorneys fees and costs) resulting from (a) RDC’s breachof any representation, warranty or covenant contained in this Agreement, or (b)RDC’s gross negligence or willful misconduct in the course of its performanceof this Agreement.

 

  13.                         IndemnificationProvisions for the Benefit of RBC.

 

  (a) As to BRLI:

(i)             BRLI shall indemnify, defend andhold harmless RDC and its agents, shareholders, officers, directors,affiliates, successors and assigns from and against any and all actions, suitsproceedings, claims, demands, orders, damages, dues, penalties, fines, costs,liabilities, obligations, losses, royalties, expenses and fees (including,without limitation, attorneys fees and costs ) resulting from (a) BRLI’s breachof any material representation, warranty or covenant contained in thisAgreement, (b) BRLI’s gross negligence or willful misconduct in the course ofits performance of this Agreement.

 

  (b) As to CareEvolve:

(i)             CareEvolve shall indemnify, defendand hold harmless RBC and its agents, shareholders, officers, directors, affiliates,successors and assigns from and against any and all actions, suits,proceedings, claims, demands, orders, damages, dues, penalties, fines, costs,liabilities, obligations, losses, royalties, expenses and fees (including,without limitation, attorneys fees and costs) resulting from (a)) CareEvolve’sbreach of any material representation, warranty or covenant contained in thisAgreement, (b)) CareEvolve’s gross negligence or willful misconduct in thecourse of its performance of this Agreement., (c) any injuries or death topersons, damage to property or other losses or liabilities whatsoever realizedby a third party as a result of the marketing, sale, use, misuse,administration, transmission or other operation of the CareEvolve Service, and(d)) any actual or alleged violation, infringement, breach or misappropriationby CareEvolve of any third party intellectual property rights caused orallegedly caused by CareEvolve’s marketing, ownership, use, misuse, licensing,sale, commercialization or any other utilization of the CareEvolve Serviceand/or the CareEvolve IP.

 

  14.                         Confidentiality.  Each of RDC, BRLI and CareEvolveacknowledges that in the course of its performance under this Agreement itshall receive from the other Parties certain Confidential Information (ashereinafter defined).  During the Termand for a period of five years following the expiration or termination thereof,no Party shall disclose such Confidential Information to third parties withoutthe prior written consent of the disclosing Party; provided, however, that RDCmay, without prior written consent, disclose BRLI or CareEvolve ConfidentialInformation to any affiliate controlled by or under common control with RDC,except LabCorp Holdings, Inc., or any other LabCorp division, sub-division,business unit or associated business operation of LabCorp Holdings, Inc..  Neither RDC nor BRLI nor CareEvolve shallmake any use, commercial or otherwise, of any of the other Party’s ConfidentialInformation for any purpose unrelated to its performance of its obligationsunder this Agreement.

 

  (a)                         PublicDisclosure.  A Party shall berelieved of confidentiality obligations under this Section 14 if (a) theParty receiving the Confidential Information can demonstrate by written recordsthat the Confidential Information was already known to it, or to an affiliate,at the time of the original receipt of the Confidential Information from theother Party, (b) the Confidential Information was, at the time of disclosure tothe receiving Party, generally available to the public or later becomesavailable to the public through no fault of the receiving Party, or (c) theConfidential Information was made available to the receiving Party or anaffiliate of the receiving Party for its use or disclosure by a third party whoat the time of transmitting such Confidential Information had the right to doso.

 

  (b)                         ConfidentialInformation – Defined.  For purposesof this Agreement, “Confidential Information” shall mean confidential andproprietary business information that, if disclosed in tangible form, is markedas confidential at the time of disclosure by the disclosing Party, or if firstdisclosed orally, is identified as confidential by the disclosing Party at thetime of disclosure and is summarized in writing within thirty days of suchdisclosure.

 

  15.                         Miscellaneous.

 

  (a)                   Optionto Purchase Equity Interests.

(i)                RDC shall have the option toinitiate negotiation of a minority investment in BRLI. If RDC provides writtennotice to BRLI of its desire to initiate such negotiations, BRLI shallnegotiate with RDC in good faith on such investment maters.

(ii)               For the nominal sum of $10.00(the “CareEvolve Option Fee”), BRLI hereby grants to RDC an option (the“CareEvolve Option”) to purchase an equity interest in CareEvolve from BRLIequal to up to 50% of the ownership of CareEvolve.

(iii)              The CareEvolve Option shallentitle RDC to make the equity investments at fair market value at the time ofthe exercise of the respective Option.

(iv)              The CareEvolve Option shall becomeexercisable upon the payment of the CareEvolve Option Fee and shall expire uponthe termination of this Agreement.

 

  (b)                         Rightof First Refusal:  BRLI herebygrants RDC a right of first refusal to purchase CareEvolve from BRLI atsubstantially the same price and upon substantially the same terms as anyvalid, reasonable offer by a third party to purchase CareEvolve from BRLI whichBRLI is willing to accept.  BRLIpromptly shall provide to RDC written notice of any offer received by a thirdparty to purchase CareEvolve from BRLI that BRLI is willing to accept, whichnotice shall include a detailed, complete description of the terms of the offerprovided by such third party.  RDC shallhave thirty days from the date of notice exercise such right of first refusalby providing written notice to BRLI of RDC’s intent to exercise its right offirst refusal

 

  (c)                         DisputeResolution.  If a disagreementarises between the Parties as to any matters within the scope of this Agreement(including, without limitation, a disagreement among the Steering Committeeresulting in a deadlock), and the personnel of either Party responsible foradministering this Agreement are unable despite good faith efforts to resolvethe dispute among themselves, either Party may request that the issue ofdisagreement be referred to members of Senior Management (as hereinafterdefined) of the Parties for resolution. (For the purposes of this Agreement, “Senior Management” shall be deemedto include any member of management at the equivalent level of a vice-presidentor above who has authority to settle such disputes.)  The Parties agree not to take any other action to resolve anydispute relating to this Agreement until at least thirty days have elapsedsince the first communication between Senior Management representativespursuant to this Section 15(c); provided, however, that either Party mayseek injunctive relief if such Party believes in good faith that it will sufferirreparable harm without such relief before such period of time elapses.  This Agreement shall remain in full forceand effect during the pendency of any dispute resolution procedures undertakenpursuant hereto.

 

  (d)                         Notice.  All notices, requests, demands, approvals,consents and other communications under this Agreement shall be in writing andshall be deemed to have been duly given (a) on the date of service ifserved personally on the Party to whom notice is to be given, (b) on theday of transmission if sent via facsimile transmission to the facsimile number givenbelow, provided that telephonic confirmation of receipt is obtained promptlyafter completion of transmission, (c) on the second day after delivery toany express courier, or (d) on the fifth day after mailing, if mailed tothe Party to whom notice is to be given, by first class mail, registered orcertified, postage prepaid, and addressed as follows: If to RDC, to RocheDiagnostics Corporation, 9115 Hague Road, Indianapolis, IN 46256, Attn: DavidQuick, Telephone: 317/521-3896Fax: 317/521-2777 Copy to Law Department at sameaddress, Telephone: 317/845-2000; Fax: 317/521-2840.  If to BRLI, to: Bio-Reference Laboratories, Inc., Attention: Marc Grodman, MD, CEO, 481Edward Ross Drive, Elmwood Park, NJ 07407 Telephone 201-791-2600.  If toCareEvolve, to:  CareEvolve.com, Inc.,Attention: Richard L. Faherty, COO, 481 Edward Ross Drive, Elmwood Park, NJ07407  Telephone 201-791-2600. Copy to :Roger Tolins, Esq., Tolins & Lowenfels, PC, 747 Third Avenue, New York,NY  10017.  Any Party may change its address for the purpose of this Section15(d) by giving the other Party written notice of its new address in themanner set forth above.

 

  (e)                         Relationshipof Parties.  Nothing in thisAgreement shall be construed to (i) create a joint venture, partnership, employer/employeerelationship, agency or any other relationship other than that of partiescontracting at arms-length, or (ii) to authorize either Party to assume orundertake any obligations of any kind, express or implied, on behalf of theother Party.

 

  (f)                          Expenses.  Except as explicitly provided in Sections12 and 13 with respect to indemnification claims, each Party shallbear its own expenses in connection with the negotiation, execution andperformance of this Agreement, including without limitation legal fees andexpenses.

 

  (g)                         Non-Solicitation.  During the Term and for a period of one yearfollowing the expiration or termination thereof, neither Party, without theconsent of the other Party, shall solicit, recruit or persuade any personperforming under this Agreement to terminate his/her employment with the otherParty.

 

  (h)                         Successionand Assignment.  This Agreementshall be binding upon and inure to the benefit of the Parties named herein andtheir respective successors and permitted assigns.  Neither Party may assign or delegate this Agreement or any of itsrights, interests or obligations hereunder without the prior written approvalof the other Party.

 

  (i)                          Taxes,Duties and Other Charges.  BRLI andCareEvolve shall indemnify and hold harmless RDC from and against any sales,use, gross receipts, value-added, excise, property or other tax, tariff, dutyor assessment (excluding income taxes incurred by RDC) and related interest andpenalties collected, levied or imposed by national governments, state orprovincial governments, local governments or any subdivision of the foregoingand arising out of or related to the operations of CareEvolve during the termof this Agreement by CareEvolve..

 

  (j)                          Publicity.  Neither Party shall issue any press releasenor make any public announcement respecting the execution or the terms of thisAgreement without the prior approval of the other Party.

 

  (k)                         Headings.  The section headings contained in thisAgreement are inserted for convenience only and shall not affect in any way themeaning or interpretation of this Agreement.

 

  (l)                          Counterparts;Facsimile Signatures.  ThisAgreement may be executed in counterparts, each of which shall constitute anoriginal, and all of which together shall constitute one and the sameinstrument.  Delivery by a Party ofexecuted counterparts of this Agreement by facsimile shall constitute executionand delivery of such counterpart to the same extent as if such counterpart wereoriginally executed and delivered by such Party.

 

  (m)                        Severability.  If any provision of this Agreement shall beheld invalid, illegal or unenforceable in any jurisdiction, such provisionshall be ineffective to the extent of such invalidity, illegality orunenforceability, the validity, legality or enforceability of the otherprovisions hereof shall not be affected thereby, and there shall be deemedsubstituted for the provision at issue a valid and enforceable provision assimilar as possible to the provision at issue, all without affecting the validity,legality or enforceability of such provision in any other jurisdictions.

 

  (n)                         Amendment.  No provision of this Agreement may bechanged, waived, discharged or terminated orally, by telephone or by any meansexcept by an instrument in writing signed by the Party against whom enforcementof the change, waiver, discharge or termination is sought and then the sameshall be effective only in the specific instance for which it is given.

 

  (o)                         Interpretation.  The Parties hereto acknowledge and agreethat this Agreement represents the product of negotiations conducted in goodfaith and at arms-length and that this Agreement should not be interpreted infavor of or against any Party because of such Party’s ability or inability tocontrol the drafting of this Agreement.

 

  (p)                         EntireAgreement.  This Agreement containsthe entire agreement of the Parties relating to the matters addressed herein ortherein, superseding any and all prior agreements, whether written or oral.

 

  (q)                         Survival.  The provisions of Sections 8, 9,10, 11, 12, 13, 15(b), 15(e), 15(f),15(h), 15(m) and 15(o) shall survive the execution of thisAgreement and the expiration or termination of the Term and remain binding onthe Parties in accordance with their terms.

 

  (s)                         Guaranty.  BRLI hereby unconditionally, absolutely andirrevocably guarantees the full and prompt payment by CareEvolve of any amountsowed to RDC pursuant to any provision of this Agreement, and the full andprompt performance by CareEvolve of all provisions of this Agreement.

 

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IN WITNESSWHEREOF, this Agreement is executed as of the date first above written.

 
| ROCHE DIAGNOSTICS  CORPORATION(“RDC”)                                                                   |   | BIO-REFERENCE LABORATORIES,  INC.(“BRLI”)                                   |
|-------------------------------------------------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------|
|  

 

 

By: /S/Richard W. AdermanPrinted: Richard W. AdermanTitle: Sr. V.P. & General Manager |   |  

 

 

By: /S/Richard L. FahertyPrinted: Richard L. FahertyTitle:CIO |
|                                                                                                              |   | CAREEVOLVE.COM,  INC.(“CareEvolve”)                                         |
|                                                                                                              |   |                                                                                  |
|                                                                                                              |   | By:  /S/Richard L. FahertyPrinted: Richard L. FahertyTitle: COO                       |