Employment Agreement

Confidentiality, non-solicitation and proprietary rights agreement

This Confidentiality, Non-Solicitation and Proprietary Rights Agreement (this “Agreement”) is made and entered into as of

Date *

by and between Samaritan Services, Inc., a New Jersey corporation with a business address at 24 County Road, Tenafly, NJ 07670 (together with its affiliates and related businesses, the “Company”) and

Name *

an individual residing at

Address *

Address

In consideration of the Employee’s employment, compensation, and benefits by and from the Company and, in the case of an individual already employed by the Company, in further consideration of the Employee’s continued employment, and other good and valuable consideration, the receipt and sufficiency of which Employee hereby acknowledges, the Employee and the Company agree as follows:

1. Protection of Confidential Information.
(a) During Employee’s employment with the Company and at all times thereafter Employee shall: (i) use best efforts to treat and keep all Confidential Information (as defined in Section 17(a) below) as strictly confidential; (ii) not directly or indirectly disclose, publish, communicate or make available any Confidential Information, or allow it to be disclosed, published, communicated or made available, in whole or in part, to any entity or person whatsoever, except as required in the performance of Employee’s authorized duties of employment for the Company; and (iii) not access or use any Confidential Information, or copy any documents, records, files, media or other resources containing or derived from Confidential Information, or remove any such documents, records, files, media or other resources from the premises or control of the Company, except as required in the performance of Employee’s authorized duties of employment for the Company.

(b) Exceptions to Prohibitions on Disclosure.
(i) Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency (provided Employee provides reasonable advanced written notice of such disclosure to the Company).
(ii) Notwithstanding any other provision in this Agreement to the contrary, Employee will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that: (a) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee may disclose the Company’s trade secrets to Employee’s counsel and use the trade secret information in the court proceeding if Employee files the documents containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
(iii) Nothing in this Agreement prohibits or restricts the Employee from filing a charge or complaint with the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), the Occupational Safety and Health Administration (OSHA), or any other securities regulator or other self-regulatory organization, or any other federal or state regulatory authority “Government Agencies”. The Employee further understands that this Agreement does not limit the Employee’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency without notice to the Company.
(iv) Nothing in this Agreement is meant to preclude Employee from openly discussing with co-workers or other persons wages, hours, working conditions, and other terms and conditions of employment.

2. Return of Property and Records. Upon the Company’s request or the termination of Employee’s employment or assignment for any reason, whichever is earlier, the Employee shall promptly provide or return to the Company (without retaining any copies) any and all of the Company’s property, including, without limitation, keys or key cards, access cards, identification cards, security devices, credit cards, network access devices, computers, laptops, tablets, cell phones, smartphones, PDAs, pagers, fax machines, equipment, speakers, webcams, manuals, reports, files, books, compilations, Work Product (as defined in Section 17(b) below), technical notebook records, technical reports, patent applications, blueprints, notes, database contents, drawings, artwork, reproductions, processes or design disclosure information, models, schedules, media lists, client lists, lead lists, sales lists, dealer lists, sales records, sales requests, lists of suppliers, information concerning potential, current, or former clients and their patients, information concerning current or former consultants, lists of job orders, openings, or specifications, plans, correspondence, letters, e-mail messages, recordings, tapes, disks, thumb drives or other removable information storage devices, hard drives, negatives and data and all documents, files, records, and materials belonging to the Company and stored in any fashion (whether in paper, electronic, or other format), including, but not limited to, those that constitute or contain or are derived from any Confidential Information or Work Product, that are in the possession or control of the Employee. All such property shall remain and is the sole and exclusive property of the Company.

3. Work Made for Hire; Assignment; Further Assurances.
(a) Employee acknowledges that, by reason of being employed by the Company, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in the Copyright Act of 1976 (17 U.S.C. § 101), and such copyrights are therefore owned exclusively by the Company. To the extent that the foregoing does not apply, Employee hereby irrevocably assigns to the Company, for no additional consideration, Employee’s entire right, title and interest in and to all Work Product and Intellectual Property Rights (as defined in Section 17(c) below) therein, including the right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement.

(b) Employee agrees, during and after his or her employment, to reasonably cooperate with the Company to (i) apply for, obtain, perfect and transfer to the Company the Work Product and Intellectual Property Rights therein in any jurisdiction in the world; and (ii) maintain, protect and enforce the same, including, without limitation, executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments and other documents and instruments as shall be requested by the Company. Employee hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on the Employee’s behalf in Employee’s name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, issuance, prosecution and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if the Employee does not promptly cooperate with the Company’s request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by the Employee’s subsequent incapacity.

4. Ownership of Rights; No License. Except with respect to any Pre-Existing Works (as defined in Section 5 below), the Company shall be and is the sole and exclusive owner of any and all Confidential Information, Intellectual Property Rights, and Work Product. Employee hereby irrevocably waives, to the extent permitted by applicable law, any and all claims Employee may now or hereafter have in any jurisdiction to all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as “moral rights” with respect to all Work Product and all Intellectual Property Rights therein. This Agreement shall not be construed to grant Employee any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software, or other tools made available to Employee by the Company or its clients.

5. No Existing Inventions. Except with respect to any Pre-Existing Works, Employee represents that there are no unpatented inventions or other work products made or conceived by Employee, created or conceived either alone or jointly with others, before entering into employment with the Company that are related to the Company’s business affairs. “Pre-Existing Works” shall mean work product that Employee made and conceived, and disclosed in writing to the Company, prior to the commencement of Employee’s employment with the Company; provided, however, that no work product shall be considered Pre-Existing Works unless the Company agrees in writing to such designation at the time of disclosure from Employee.

6. Acknowledgement. Employee acknowledges that while employed by the Company Employee will be in a position of trust and have access to, learn, be provided with, and prepare and create certain Confidential Information, including, but not limited to, client and patient information, all of which are of significant value to the Company’s business. Employee further recognizes that Employee will have substantial contacts with the Company’s clients and/or their patients. Employee hereby acknowledges a fiduciary relationship will exist between Employee and the Company by reason of Employee having received and been privy to client information (including information concerning the Company’s clients and their patients) and other Confidential Information that would give Employee an unfair advantage in taking the Company’s clients and/or their patients if Employee departs or is terminated from the Company. Employee further acknowledges that the restrictive covenants below are reasonable and necessary to protect the Company’s legitimate business interest in its Confidential Information and goodwill, which are of great competitive importance and commercial value to the Company (and the Company would be irreparably harmed if the Employee violates the restrictive covenants below). Employee agrees that Employee will not be subject to any undue hardship by reason of Employee’s full compliance with the terms and conditions of this Agreement or the Company’s enforcement thereof. It is agreed by both parties to this Agreement that the restrictions provided herein are reasonable protections for the Company’s legitimate business interests and not to impair the ability of Employee to earn a living.

7. Non-Solicitation and Non-Interference.
(a) Non-Solicitation of Employees and Consultants. Except as required by Employee’s duties of employment for the Company, Employee agrees that during the course of Employee’s employment by the Company and for a period of twelve (12) months immediately following the termination of Employee’s employment for any reason (either by Employee or by the Company), Employee will not for any reason, directly or indirectly solicit, recruit, or hire any employee or consultant of the Company, or in any way participate or assist in recruiting, soliciting, encouraging, or inducing any employee or consultant of the Company to terminate or diminish his or her or their employment or business relationship with the Company. This non-solicitation provision explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, fax, instant message, and social media, including, but not limited to, Facebook, LinkedIn, Instagram, Twitter, and any other social media platform, whether or not in existence at the time of entering into this Agreement. However, it will not be deemed a violation of this Agreement if the Employee merely updates the Employee’s LinkedIn profile or connects with a covered employee or consultant on Facebook, LinkedIn, or other social media platform without engaging in any other substantive communication that is prohibited by this section.

(b) Non-Solicitation of Clients. Employee acknowledges that the Company’s clients were developed through the substantial efforts of the Company and the Company’s employees. Employee further acknowledges that the Company has expended significant financial and other resources to build such relationships, that these relationships are between the Company and the client, not the Employee, and that the loss of these relationships and/or associated goodwill will cause significant and irreparable harm to the Company. Accordingly, during the course of Employee’s employment and for a period of twelve (12) months immediately following the date of the termination of Employee’s employment for any reason (either by Employee or by the Company), Employee shall not, directly or indirectly, himself or herself or through any other person or entity:
(i) contact (including, but not limited to, by email, mail, telephone, text message, fax, instant message, social media communication, or otherwise) or solicit any Client (as defined in Section 17(d) below) for purposes of: (1) offering or providing services similar to or competitive with those offered by the Company, or (2) encouraging or inducing such Client to terminate or diminish its business relationship with the Company; or
(ii) provide to any Client services similar to or competitive with those offered by the Company and its employees. This non-solicitation provision explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, fax, instant message, and social media, including, but not limited to, Facebook, LinkedIn, Instagram, Twitter, and any other social media platform, whether or not in existence at the time of entering into this Agreement. However, it will not be deemed a violation of this Agreement if the Employee merely updates the Employee’s LinkedIn profile or connects with a Client on Facebook, LinkedIn, or other social media platform without engaging in any other substantive communication that is prohibited by this section.

(c) Non-Interference. During and after Employee’s employment with the Company, Employee shall not interfere with or disrupt any current or prospective commercial or contractual relationship between the Company and any third party. After Employee’s employment has terminated Employee shall not hold himself or herself out as continuing to be in any way employed by or representing the Company.

8. Remedies. Employee acknowledges and agrees that in the event of his or her breach or threatened breach of this Agreement, the Company will suffer irreparable harm that cannot be adequately compensated by money damages. Employee agrees that, in addition to any and all other remedies at law, in equity, or otherwise, the Company shall be entitled to immediately obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other available equitable remedy, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the requirement of the Company posting a bond or other security. Should Employee violate this Agreement: (i) with respect to the restrictive covenants herein, the obligation at issue shall toll (and shall be automatically extended) during the period in which Employee is in violation of such obligation; and (ii) Employee shall pay to the Company all reasonable attorneys’ fees and costs that the Company incurs in the course of enforcing this Agreement, including demonstrating the existence of a breach and any other contract enforcement efforts. Any cause of action Employee may have against the Company shall not constitute a defense to the Company’s enforcement of this Agreement. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other remedies at law or in equity that it may have, or any other rights that it may have under any other agreement or otherwise.

9. At-Will Employment. Employee acknowledges that Employee is employed at will and that this Agreement should not be construed as a contract of employment for any specific or guaranteed duration. Consequently, either the Employee or the Company may terminate the employment relationship at any time, with or without cause, and with or without notice.

10. Successors and Assigns. The Company may freely assign this Agreement at any time. This Agreement shall inure to the benefit of the Company and its successors and assigns. Employee may not assign this Agreement or any part hereof.

11. Entire Agreement. This Agreement contains all the understandings and representations between the Company and Employee pertaining to the subject matters hereof and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, whether oral or written, with respect to the subject matters covered.

12. Interpretation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

13. Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Company and Employee. No waiver by either party of any breach by the other party hereto of any condition or provision of this Agreement shall be deemed a waiver of any other provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either party in exercising any right, power or privilege hereunder operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.

14. Severability. The parties agree that a court of competent jurisdiction is expressly authorized to modify any unenforceable provision of this Agreement in lieu of severing such unenforceable provision in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by law. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein.

15. Choice of Law; Jurisdiction. This Agreement shall be governed by the laws of the State of New York without regard to choice of laws principles. The parties agree to the exclusive jurisdiction of the state and federal courts located in the County of New York in connection with any and all disputes arising out of this Agreement. The parties waive the defense of an inconvenient forum to the maintenance of any such action or proceeding in such venue.

16. 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. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

17. Definitions.
(a) The term “Confidential Information” includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, licenses, mailing lists, financial and related information, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, works-in-process, databases, manuals, records, articles, systems, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, medical and health information, marketing information, advertising information, pricing information, credit information, design information, consultants, supplier lists, vendor lists, developments, reports, internal controls, security procedures, graphics, works of art, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, job orders or openings, client information, client lists, client leads and sales prospects (including without limitation the clients’ key contact person(s), business affairs, fee arrangements, preferences, order history, reporting lines, and methods of operation), information concerning the Company’s clients and their patients including (but not limited to) any medical or health-related information, consultant information, distributor lists, and buyer lists of the Company or its businesses or any existing or prospective client, patient, supplier, investor or other associated third party, or of any other person or entity that has entrusted information to the Company in confidence. The Employee understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Confidential Information shall not include information that is generally available to and known by the public, provided that such disclosure to the public is through no fault of the Employee or persons acting on Employee’s behalf.

(b) The term “Work Product” means any and all writings, works of authorship, technology, inventions, discoveries, ideas and other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived or reduced to practice by Employee, individually or jointly with others, during the period of his or her employment by the Company and relating in any way to the past, present or contemplated business, research or development of the Company (regardless of when or where the Work Product is prepared or whose equipment or other resources is used in preparing the same), and all printed, physical and electronic copies, all improvements, rights and claims related to the foregoing, and other tangible embodiments thereof, all whether or not patentable. For the purposes of this Agreement, Work Product includes, but is not limited to, plans, publications, research, strategies, techniques, agreements, documents, contracts, terms of agreements, negotiations, know-how, computer programs, computer applications, computer code in source or object form, computer hardware or software, machinery, devices, software design, web design, work in process, databases, manuals, results, developments, reports, graphics, video, artwork, logos, market studies, formulae, notes, compositions, communications, algorithms, product plans, product designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, client information, client lists, patient lists, patient information, marketing information, advertising information, and sales information. The parties further agree that any and all writings, works of authorship, technology, inventions, discoveries, ideas and other work product created, produced, authored, edited, amended or reduced to practice by Employee during the three (3) months immediately following the termination of his or her employment with Company shall presumably have been conceived during his or her employment with the Company. The term “Work Product” shall not include any Pre-Existing Works, as defined above.

(c) The term “Intellectual Property Rights” means any and all rights in and to copyrights, trade secrets, trademarks (and related goodwill), service marks, mask works, patents and other intellectual property rights in any Work Product arising in any jurisdiction throughout the world and all related rights of priority under international conventions with respect thereto, including all pending and future applications and registrations therefor, and continuations, divisions, continuations in part, reissues, extensions and renewals.

(d) The term “Client” means any of the following persons or entities: (1) a client of the Company about whom Employee has at any time possessed, obtained, or learned any Confidential Information or other confidential, proprietary, or non-public information; 

(2) a client of the Company with or for whom Employee (or another employee managed by or reporting to Employee) personally worked or performed services or had business dealings, or who Employee in any way contacted, during Employee’s employment with the Company; or (3) a prospective client of the Company that, to Employee’s knowledge during his or her employment with the Company, inquired about the Company’s services in the twelve (12) months immediately preceding the termination of Employee’s employment with the Company for any reason (either by Employee or by the Company). For the avoidance of doubt, items (1) through (3) of this Section 17(d) shall be deemed to include such client’s patients. However, “Client” shall not include any person or entity that is Employee’s personal client relationship formed prior to the commencement of Employee’s employment with the Company, all of which such purported pre-existing relationships Employee shall immediately disclose in writing to the Company.

18. Acknowledgement of Understanding. Employee hereby acknowledges that Employee has read and fully understands the provisions of this Agreement, and that Employee has knowingly signed it of Employee’s own free will, after being given sufficient opportunity to discuss and address questions with a representative of the Company and/or an attorney of Employee’s choosing. The Company is not responsible for any attorneys’ fees incurred by Employee in consulting with an attorney in connection with this Agreement.

IN WITNESS WHEREOF, the parties have made this Agreement as of the date first shown above.

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Employment Agreement

Confidentiality, non-solicitation and proprietary rights agreement

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