Prepared by MERRILL CORPORATION





Exhibit 10.12


 


STRATEGIC MARKETING ALLIANCE AGREEMENT


 


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


 


PRELIMINARY
STATEMENTS


 


A.            RDC is engaged in the business of manufacturing,
marketing and selling diagnostic equipment, reagents and other related supplies
and 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 electronic
communications service that is designed, among other things, to communicate
laboratory orders and results, e-mail prescriptions and refills, provide payer
eligibility, process payment claims, manage disease programs for specified
disease states, and provide other physician services (the “CareEvolve
Service”).


 


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


 


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


 


TERMS


 


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


 


  1.                           Strategic
Alliance.  The Parties hereby
establish a strategic marketing alliance (the “Alliance”), which shall be
governed by the terms set forth in this Agreement.






 


  2.           Obligations
of RDC.  RDC shall have the
following obligations in connection with the Alliance:


 


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


 


  (b)                         Payment
of Expenses.  Within thirty days of
the 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 specified
by the Steering Committee (as hereinafter defined). This sum shall be used by
CareEvolve during the term of this Agreement solely to fund those ongoing
operating expenses of CareEvolve set forth in the Steering Committee-approved
Annual Budget described in Section 5 (the “CareEvolve Operating Expenses”),
including the expenses associated with the employment by CareEvolve of the employees
specified in Section 3(a). RDC shall be obligated to make no other payments
with respect to the activities of the Alliance during the term, except for such
other expenses as may be approved in advance in writing by the Steering
Committee.


 


  (c)                         Managerial
Support.  During the Term, RDC shall
provide general managerial support to the Alliance and to CareEvolve, at no
cost or expense to CareEvolve.  For
purposes of this section and Section 3(c) of this Agreement, “general
managerial support” shall be deemed to mean general advice and consultation by
members of the mid-level to senior management of the party providing such
support. “General managerial support” shall not be construed to mean the
conduct of day-to-day operations of the CareEvolve business.


 


  (d)                         Sales
Efforts.  During the Term, RDC shall
cause its sales personnel to exercise commercially reasonable efforts to market
and sell the CareEvolve Service.


 


  (e)                         Exclusivity.  During the Term, RDC shall not (1) directly
or indirectly develop and/or market any other portal solution providing the
service of lab order test result reporting, (2)  enter into any other arrangements with CareEvolve competitors for
portal solutions for lab order test result reporting, or (3) enter into any
agreement or arrangement with MedUnite [Insert proper corporate
name of MedUnite] that could
reasonably be deemed to  interfere with
the relationship of CareEvolve with MedUnite.






 


  3.                           Obligations
of BRLI and CareEvolve.  BRLI and
CareEvolve shall have the following obligations in connection with the
Alliance:


 


  (a)                         Employment
of CareEvolve Employees. During the Term, CareEvolve shall employ the following
employees on a full-time basis: (a) one Marketing Manager and (b) three
marketing, sales, support and training persons. These employees (collectively,
the “CareEvolve Marketing Employees”) shall dedicate their time exclusively to
the business of marketing the CareEvolve Service on a full-time basis.  CareEvolve shall be solely responsible for
the payment of all expenses associated with the employment of the CareEvolve
Marketing 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 and
direction of CareEvolve; however, that (1) the Steering Committee shall advise
and assist in the hiring and performance assessments of the CareEvolve
Marketing Employees, (2) no employee shall be hired as a CareEvolve Marketing
Employee without the consent of the Steering Committee and (3) the Steering
Committee may, at any time, require the termination and replacement of any
CareEvolve Marketing Employee.


 


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


 


  (c)                         Managerial
Support.  During the Term, BRLI
shall provide general managerial support to the Alliance and to CareEvolve, at
no cost or expense to CareEvolve.


 


  (d)                         Sales
Efforts.  During the Term, BRLI and
CareEvolve shall cause its sales personnel to exercise commercially reasonable
efforts to market and sell the CareEvolve Service.


 


  (e)                         Records
and Access.  During the Term and for
a period of eight years following the expiration or termination of the Term,
CareEvolve shall prepare, preserve and maintain reasonably detailed, complete
and accurate records of all marketing activities for, sales/commercialization
referrals for, gross revenues realized in connection with, and costs and
expenses incurred in connection with, the CareEvolve Service, the Alliance and
CareEvolve.  CareEvolve shall provide to
RDC or its designated agents, upon reasonable request, but no more than one
time in any given six month period of time or upon termination of this
Agreement as herein described in Paragraph 7, complete access to such records
for any purpose whatsoever.  RDC shall
be entitled to make and retain copies of such records, at RDC’s expense.


 


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






 


  (g)                         No
Other Agreements; No Sale of Equity. During the Term, without the prior
written consent of RDC, neither BRLI nor CareEvolve shall enter into an
agreement or arrangement with any other party respecting the distribution of
the income or revenue of CareEvolve, nor shall CareEvolve issue any
additional equity or debt securities to any party other than BRLI.


 


  4.                           Payments
to RDC. During the Term, CareEvolve shall pay to each RDC and BRLI an
amount equal to 50% of the net after-tax income generated in each quarter, in
each case not to exceed 50% of the net after-tax cash (computed without
deduction of any payments or accruals made by CareEvolve to RDC and BRLI
pursuant to this paragraph 4), generated through the sale, licensing or other
commercialization of the CareEvolve Service, unless the parties have jointly
agreed through the Steering Committee to waive disbursement in the best
interests of the operations of CareEvolve. On or before the fifteenth day next
following the last day of the last month of each calendar quarter (commencing
in the second calendar quarter of the Term), CareEvolve shall deliver to RDC
and BRLI an accounting of the net after-tax income received from the
commercialization of the CareEvolve Service during the prior calendar quarter,
and shall deliver payment contemporaneously with the delivery of the
accounting.


 


  5.                           Steering
Committee; Annual Budget.


 


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






 


  (b)                 Annual
Generic Budget.  Each year, the
Steering Committee shall be responsible for setting an annual generic budget
(the “Annual Budget”) for the coming year’s CareEvolve operations, setting
forth the planned CareEvolve Operating Expenses for the year.  The Annual Budget for each year of the Term
shall be agreed upon by no later than the anniversary date of this Agreement on
which such year begins, provided, however, that the Annual Budget for the
initial year of this Term shall be agreed upon by the Steering Committee within
thirty days of execution of this Agreement. The Steering Committee shall review
the Annual Budget quarterly and make adjustments, if necessary, at the time of
such review. CareEvolve may pay any CareEvolve Operating Expenses which are
provided for in the Annual Budget, as adjusted quarterly, without further
approval of the Steering Committee. Any expense payments which are not provided
for in the Annual Budget (including any payments for operating expenses) must
be pre-approved in writing by the Steering Committee.


 


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


 


  7.                           Termination.  This Agreement may be terminated:


 


  (a)                         Mutual
Agreement.  Immediately, upon the
mutual written agreement of the Parties;


 


  (b)                         Anniversary
Dates.  On the first or any
subsequent anniversary of the date of this Agreement, by either Party, upon
written notice to the other Party provided at least thirty, but no more than
sixty, days prior to the applicable anniversary date;


 


  (c)                         Material
Breach.  Immediately, by the
non-breaching Party, upon written notice if a Party materially breaches this
Agreement and such breach is not curable, or if such breach is curable within
the thirty day period following the provision of written notice of such breach
to the breaching Party, if such breach is not cured within the thirty day
period;


 


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






 


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


 


  (f)                          Steering
Committee Deadlock.  Immediately, by
either party, if the Steering Committee is unable to reach agreement on a
material business issue relating to the CareEvolve business, and after
submission of the issue to management discussions in accordance with Section
15(c) the Parties are unable to resolve the deadlock.


 


  8.                           Effect
of Termination.


 


  (a)                         Termination
Generally.  Except as expressly
provided in Section 8(b) below, termination of this Agreement for any of the
causes specified in Section 7 shall not relieve either Party from the
performance of any commitment or obligation hereunder which survives
termination, or relieve either Party from the payment of monies owed to the
other Party pursuant to the terms of this Agreement.  Furthermore, the terminating Party shall retain all of its rights
and remedies at law and in equity upon such termination.


 


  (b)                         Return
on Investment. If RDC terminates this Agreement at any time for any of the
causes specified in Sections 7(c), (d) or (e), or if BRLI
terminates this Agreement pursuant to Section 7(b) effective during the
first two years next following the execution date of this Agreement, or if
either Party terminates this Agreement pursuant to Section 7(f) within
two years of the date of this Agreement, then:


 


  (i)                          Immediate
Return of Invested Capital.  Within
thirty days of termination, CareEvolve shall return to RDC an amount equal to
the monies advanced to CareEvolve by RDC less all budgeted CareEvolve Operating
Expenditures approved by the Steering Committee for the ongoing operation of
CareEvolve and paid on or prior  to the
date of termination pursuant to Section 4); and


 


  (ii)                         Entitlement
to Revenue Stream.  After the date
of termination, and during the five-year period following execution of this
Agreement, 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 income
generated through sales, licensing or commercialization of the CareEvolve
Service to RDC Accounts (as hereinafter defined) after collections.  Such amounts shall be calculated, paid and
accounted for quarterly in the manner contemplated in Section 4.  As used herein, “RDC Accounts” means
CareEvolve Service customers introduced to BRLI/CareEvolve by RDC personnel, or
customers acquired by BRLI/CareEvolve as a result of significant sales efforts
by RDC personnel.






 


  (iii)                        License.  Effectively immediately and automatically
upon any termination of the type described in this Section 7(b), RDC
shall 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, without
limitation, the CareEvolve IP (as hereinafter defined)). After such
termination, at its option, RDC may assume the defense of any actual or
threatened infringement or claim of infringement of any patent, copyright,
trademark, trade secret, privacy, publicity, or other proprietary right of any
third party based on the CareEvolve Service or the CareEvolve IP or its use by
RDC, or follow such other course of action is it reasonably deems necessary to
protect its interest; provided, however, that RDC shall be indemnified by BRLI
for all reasonable costs incurred in such course of action in accordance with Section
12.


 


  9.                           Representations
and Warranties of RDC.  RDC hereby
represents and warrants to BRLI as follows:


 


  (a)                         Authority;
Binding Agreement; Noncontravention. 
RDC has full power and authority to execute and deliver this Agreement
and 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 the
consummation of the actions and transactions contemplated herein will, with or
without the passage of time or the delivery of notice,  (i) conflict with, result in a breach of or
constitute a default under any note, bond, mortgage, indenture, license,
franchise, permit, agreement, lease or other instrument or obligation to which
RDC is a party or bound, (ii) violate any statute, ordinance or law or any
rule, regulation, order, writ, injunction or decree of any court,
administrative agency, commission or other governmental entity or
instrumentality, or (iii) violate any provision of the charter, bylaws or other
constituent documents of RDC.


 


  (b)                         Organization.  RDC is a corporation duly organized and
validly 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 for
the consummation by RDC of the actions and transactions contemplated by this
Agreement.






 


  10.                         Representations
and Warranties of BRLI.  BRLI hereby
represents and warrants to RDC as follows:


 


  (a)                         Authority;
Binding Agreement; Noncontravention. 
BRLI has full power and authority to execute and deliver this Agreement
and 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 the
consummation of the actions and transactions contemplated herein will, with or
without the passage of time or the delivery of notice,  (i) conflict with, result in a breach of or constitute
a default under any note, bond, mortgage, indenture, license, franchise,
permit, agreement, lease or other instrument or obligation to which BRLI is a
party or bound, (ii) to the best of its knowledge, violate any statute,
ordinance or law or any rule, regulation, order, writ, injunction or decree of
any court, administrative agency, commission or other governmental entity or
instrumentality, or (iii) violate any provision of the charter, bylaws or other
constituent documents of BRLI.


 


  (b)                         Organization;
Stock Ownership.  BRLI is a
corporation duly organized, validly existing and in good standing under the
laws 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 for
the consummation by BRLI of the actions and transactions contemplated by this
Agreement.


 


  (d)                         Ownership
of Intellectual Property.  BRLI, or
CareEvolve, owns all right, title and interest, free and clear of all
encumbrances, in and to all inventions (whether patentable or unpatentable and
whether 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 used
or useful to BRLI in connection with CareEvolve and the development, marketing
and sale of the CareEvolve Service (collectively, the “CareEvolve IP”). To the
best of its knowledge, information and belief, no person has challenged, or to
BRLI’s knowledge has threatened to challenge, the validity of or BRLI’s rights
to the CareEvolve IP.  To the best of
its knowlede, information and believ, no act or omission of BRLI, including,
without limitation, the use, production, marketing, licensing or sale of the
CareEvolve 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 and
exclusive right to bring actions for the violation, infringement or
misappropriation of the CareEvolve IP.






 


  11.                         Representations
and 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 this
Agreement and to perform its obligations hereunder.  This Agreement constitutes the valid and binding obligation of
CareEvolve, enforceable in accordance with its terms.  Neither the execution and delivery of this Agreement nor the
consummation of the actions and transactions contemplated herein will, with or
without the passage of time or the delivery of notice,  (i) conflict with, result in a breach of or
constitute a default under any note, bond, mortgage, indenture, license,
franchise, permit, agreement, lease or other instrument or obligation to which
CareEvolve is a party or bound, (ii) to the best of its knowledge, violate any
statute, ordinance or law or any rule, regulation, order, writ, injunction or
decree of any court, administrative agency, commission or other governmental
entity 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 New
Jersey. BRLI owns 100% of the issued and outstanding equity securities of
CareEvolve.


 


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


 


  (d)                         Ownership
of Intellectual Property. 
CareEvolve or BRLI owns all right, title and interest, free and clear of
all encumbrances, in and to all inventions (whether patentable or unpatentable
and whether 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 used or useful to CareEvolve in connection with
CareEvolve and the development, marketing and sale of the CareEvolve Service
(collectively, the “CareEvolve IP”). No person has challenged, or to
CareEvolve’s knowledge has threatened to challenge, the validity of or
CareEvolve’s rights to the CareEvolve IP. 
No act or omission of CareEvolve, including, without limitation, the
use, production, marketing, licensing or sale of the CareEvolve 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.  CareEvolve
or BRLI has the sole and exclusive right to bring actions for the violation,
infringement or misappropriation of the CareEvolve IP.






 


  12.                         Indemnification
Provisions for the Benefit of BRLI and CareEvolve.  RDC shall indemnify, defend and hold
harmless BRLI and CareEvolve and their 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, expenses and fees (including,
without limitation, attorneys fees and costs) resulting from (a) RDC’s breach
of any representation, warranty or covenant contained in this Agreement, or (b)
RDC’s gross negligence or willful misconduct in the course of its performance
of this Agreement.


 


  13.                         Indemnification
Provisions for the Benefit of RBC.


 


  (a) As to BRLI:


(i)             BRLI shall indemnify, defend and
hold harmless RDC 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) BRLI’s breach
of any material representation, warranty or covenant contained in this
Agreement, (b) BRLI’s gross negligence or willful misconduct in the course of
its performance of this Agreement.


 


  (b) As to CareEvolve:


(i)             CareEvolve shall indemnify, defend
and 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’s
breach of any material representation, warranty or covenant contained in this
Agreement, (b)) CareEvolve’s gross negligence or willful misconduct in the
course of its performance of this Agreement., (c) any injuries or death to
persons, damage to property or other losses or liabilities whatsoever realized
by 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 misappropriation
by CareEvolve of any third party intellectual property rights caused or
allegedly caused by CareEvolve’s marketing, ownership, use, misuse, licensing,
sale, commercialization or any other utilization of the CareEvolve Service
and/or the CareEvolve IP.


 


  14.                         Confidentiality.  Each of RDC, BRLI and CareEvolve
acknowledges that in the course of its performance under this Agreement it
shall receive from the other Parties certain Confidential Information (as
hereinafter defined).  During the Term
and for a period of five years following the expiration or termination thereof,
no Party shall disclose such Confidential Information to third parties without
the prior written consent of the disclosing Party; provided, however, that RDC
may, without prior written consent, disclose BRLI or CareEvolve Confidential
Information 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 shall
make any use, commercial or otherwise, of any of the other Party’s Confidential
Information for any purpose unrelated to its performance of its obligations
under this Agreement.






 


  (a)                         Public
Disclosure.  A Party shall be
relieved of confidentiality obligations under this Section 14 if (a) the
Party receiving the Confidential Information can demonstrate by written records
that the Confidential Information was already known to it, or to an affiliate,
at the time of the original receipt of the Confidential Information from the
other Party, (b) the Confidential Information was, at the time of disclosure to
the receiving Party, generally available to the public or later becomes
available to the public through no fault of the receiving Party, or (c) the
Confidential Information was made available to the receiving Party or an
affiliate of the receiving Party for its use or disclosure by a third party who
at the time of transmitting such Confidential Information had the right to do
so.


 


  (b)                         Confidential
Information – Defined.  For purposes
of this Agreement, “Confidential Information” shall mean confidential and
proprietary business information that, if disclosed in tangible form, is marked
as confidential at the time of disclosure by the disclosing Party, or if first
disclosed orally, is identified as confidential by the disclosing Party at the
time of disclosure and is summarized in writing within thirty days of such
disclosure.


 


  15.                         Miscellaneous.


 


  (a)                   Option
to Purchase Equity Interests.


(i)                RDC shall have the option to
initiate negotiation of a minority investment in BRLI. If RDC provides written
notice to BRLI of its desire to initiate such negotiations, BRLI shall
negotiate 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 BRLI
equal to up to 50% of the ownership of CareEvolve.


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


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






 


  (b)                         Right
of First Refusal:  BRLI hereby
grants RDC a right of first refusal to purchase CareEvolve from BRLI at
substantially the same price and upon substantially the same terms as any
valid, reasonable offer by a third party to purchase CareEvolve from BRLI which
BRLI is willing to accept.  BRLI
promptly shall provide to RDC written notice of any offer received by a third
party to purchase CareEvolve from BRLI that BRLI is willing to accept, which
notice shall include a detailed, complete description of the terms of the offer
provided by such third party.  RDC shall
have thirty days from the date of notice exercise such right of first refusal
by providing written notice to BRLI of RDC’s intent to exercise its right of
first refusal


 


  (c)                         Dispute
Resolution.  If a disagreement
arises between the Parties as to any matters within the scope of this Agreement
(including, without limitation, a disagreement among the Steering Committee
resulting in a deadlock), and the personnel of either Party responsible for
administering this Agreement are unable despite good faith efforts to resolve
the dispute among themselves, either Party may request that the issue of
disagreement be referred to members of Senior Management (as hereinafter
defined) of the Parties for resolution. 
(For the purposes of this Agreement, “Senior Management” shall be deemed
to include any member of management at the equivalent level of a vice-president
or above who has authority to settle such disputes.)  The Parties agree not to take any other action to resolve any
dispute relating to this Agreement until at least thirty days have elapsed
since the first communication between Senior Management representatives
pursuant to this Section 15(c); provided, however, that either Party may
seek injunctive relief if such Party believes in good faith that it will suffer
irreparable harm without such relief before such period of time elapses.  This Agreement shall remain in full force
and effect during the pendency of any dispute resolution procedures undertaken
pursuant hereto.


 


  (d)                         Notice.  All notices, requests, demands, approvals,
consents and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given (a) on the date of service if
served personally on the Party to whom notice is to be given, (b) on the
day of transmission if sent via facsimile transmission to the facsimile number given
below, provided that telephonic confirmation of receipt is obtained promptly
after completion of transmission, (c) on the second day after delivery to
any express courier, or (d) on the fifth day after mailing, if mailed to
the Party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and addressed as follows: If to RDC, to Roche
Diagnostics Corporation, 9115 Hague Road, Indianapolis, IN 46256, Attn: David
Quick, Telephone: 317/521-3896Fax: 317/521-2777 Copy to Law Department at same
address, Telephone: 317/845-2000; Fax: 317/521-2840.  If to BRLI, to: 
Bio-Reference Laboratories, Inc., Attention: Marc Grodman, MD, CEO, 481
Edward Ross Drive, Elmwood Park, NJ 07407 
Telephone 201-791-2600.  If to
CareEvolve, to:  CareEvolve.com, Inc.,
Attention: Richard L. Faherty, COO, 481 Edward Ross Drive, Elmwood Park, NJ
07407  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 Section
15(d) by giving the other Party written notice of its new address in the
manner set forth above.






 


  (e)                         Relationship
of Parties.  Nothing in this
Agreement shall be construed to (i) create a joint venture, partnership, employer/employee
relationship, agency or any other relationship other than that of parties
contracting at arms-length, or (ii) to authorize either Party to assume or
undertake any obligations of any kind, express or implied, on behalf of the
other Party.


 


  (f)                          Expenses.  Except as explicitly provided in Sections
12 and 13 with respect to indemnification claims, each Party shall
bear its own expenses in connection with the negotiation, execution and
performance of this Agreement, including without limitation legal fees and
expenses.


 


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


 


  (h)                         Succession
and Assignment.  This Agreement
shall be binding upon and inure to the benefit of the Parties named herein and
their respective successors and permitted assigns.  Neither Party may assign or delegate this Agreement or any of its
rights, interests or obligations hereunder without the prior written approval
of the other Party.


 


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


 


  (j)                          Publicity.  Neither Party shall issue any press release
nor make any public announcement respecting the execution or the terms of this
Agreement without the prior approval of the other Party.


 


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






 


  (l)                          Counterparts;
Facsimile Signatures.  This
Agreement may be executed in counterparts, each of which shall constitute an
original, and all of which together shall constitute one and the same
instrument.  Delivery by a Party of
executed counterparts of this Agreement by facsimile shall constitute execution
and delivery of such counterpart to the same extent as if such counterpart were
originally executed and delivered by such Party.


 


  (m)                        Severability.  If any provision of this Agreement shall be
held invalid, illegal or unenforceable in any jurisdiction, such provision
shall be ineffective to the extent of such invalidity, illegality or
unenforceability, the validity, legality or enforceability of the other
provisions hereof shall not be affected thereby, and there shall be deemed
substituted for the provision at issue a valid and enforceable provision as
similar 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 be
changed, waived, discharged or terminated orally, by telephone or by any means
except by an instrument in writing signed by the Party against whom enforcement
of the change, waiver, discharge or termination is sought and then the same
shall be effective only in the specific instance for which it is given.


 


  (o)                         Interpretation.  The Parties hereto acknowledge and agree
that this Agreement represents the product of negotiations conducted in good
faith and at arms-length and that this Agreement should not be interpreted in
favor of or against any Party because of such Party’s ability or inability to
control the drafting of this Agreement.


 


  (p)                         Entire
Agreement.  This Agreement contains
the entire agreement of the Parties relating to the matters addressed herein or
therein, 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 this
Agreement and the expiration or termination of the Term and remain binding on
the Parties in accordance with their terms.


 


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


 


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


 


	
  ROCHE DIAGNOSTICS

  CORPORATION
(“RDC”)

  	
   

  	
  BIO-REFERENCE LABORATORIES,
  INC.(“BRLI”)

  
	
   

   

   

  By: /S/Richard W. Aderman

Printed: Richard W. Aderman

  
Title: Sr. V.P. & General Manager

  	
   

  	
   

   

   

  By: /S/Richard L. Faherty

  
Printed: Richard L. Faherty

  
Title:CIO

  
	
   

  	
   

  	
  CAREEVOLVE.COM,
  INC.
(“CareEvolve”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  /S/Richard L. Faherty

  
Printed: Richard L. Faherty

  
Title: COO