QDHC » Topics » 6.03 Covenant Not to Compete .

This excerpt taken from the QDHC 8-K filed Jul 26, 2007.

6.03 Covenant Not to Compete.

(a) Each of Seller and Seller Parent hereby agrees that it will not, and will not permit any of its Affiliates to, except on behalf of Buyer in accordance with the terms of this Agreement, during the period beginning on the date hereof and ending on the fourth (4th) anniversary of the Closing Date, directly or indirectly, for any reason, for its own account, or on behalf of, or together with or through, any other Person or entity, whether as principal, agent, shareholder, participant, partner, promoter, director, officer, director, shareholder, equity owner, employee, consultant, sales representative or otherwise:

(i) own, operate, maintain, control, manage, or participate in the ownership, control or management of, or render services or advice to, or have a material financial interest in, or lend its name to, any business engaged in, or that is undertaking to become engaged in, in whole or in part, the purchase, sale, distribution, research, development, maintenance, customer service, or support in each case, within the Territory, of any service or product that is identical or substantially similar to any service or product offered by the Business, including, without limitation, the CPR Software Products (the “CPR Related Products and Services”); notwithstanding the foregoing, from and after such time as Seller shall cease to be an Affiliate of Seller Parent, the foregoing clause (i) shall not apply to Seller, provided, however, that in no circumstance may Seller, during the period beginning on the date hereof and ending on the fourth (4th) anniversary of the Closing Date, directly or indirectly, for any reason, for its own account, or on behalf of, or together with or through, any other Person or entity (whether as principal, agent, shareholder, participant, partner, promoter, director, officer, director, shareholder, equity owner, employee, consultant, sales representative or otherwise), sell, distribute or provide any CPR Related Products and Services to the customers identified on Schedule 4.15(a);

(ii) solicit, or assist in the solicitation of, any Person having an office or conducting business anywhere within the Territory and to whom Seller either sold or provided the CPR Related Products and Services, in each case, during the 2-year period ending on the Closing Date, for the purpose of selling, providing or soliciting to sell or provide any CPR Related Products and Services; or

 

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(iii) solicit, or assist in the solicitation of, any Hired Employee or other Person employed or engaged by Buyer as of the Closing Date in any capacity (as an employee, independent contractor or otherwise) to terminate such employment or other engagement, whether or not such employment or engagement is pursuant to a Contract and whether or not such employment or engagement is at-will.

(b) Notwithstanding anything herein to the contrary, it will not be a Breach of the covenant contained in Section 6.03(a)(i) for Seller or Seller Parent to own, directly or indirectly, up to an aggregate of two and one-half percent (2.5%) of any class of publicly traded securities of any Person engaged in any of the activities described in Section 6.03(a)(i), so long as such securities are held as a passive investment. For the avoidance of doubt, it will not be a Breach of the covenant contained in Section 6.03(a)(i) or Section 6.03(a)(ii) for Seller or Seller Parent to develop, produce, build, offer, sell, market, distribute, or otherwise conduct business with respect to the products and services of Seller or Seller Parent identified on Schedule 6.03(b), which are in each case, products or services of Seller or Seller Parent that are not identical or substantially similar to any of the CPR Related Products and Services; provided, however, that neither Seller nor Seller Parent shall be permitted to offer, sell, or otherwise provide Misys Connect (“Misys Connect”) to any customer of Seller or Seller Parent using the CPR Software Product as of the Effective Time for purposes of using such Misys Connect software product with the CPR Software Product.

(c) Although the parties have, in good faith, used their best efforts to make the provisions of Section 6.03(a) reasonable in terms of geographic area, duration and scope of restricted activities in light of the Business and the consideration to be received by Seller hereunder, and it is not anticipated, nor is it intended, by any party hereto that an arbitral panel or court of competent jurisdiction would find it necessary to reform the provisions hereof to make them reasonable in terms of geographic area, duration or otherwise, the parties understand and agree that if an arbitral panel or court of competent jurisdiction determines it necessary to reform the scope of Section 6.03(a) or any part thereof in order to make it binding and enforceable, such provision will be considered divisible in all respects and such lesser scope as any such court will determine to be reasonable will be effective, binding and enforceable to the fullest extent possible.

(d) The parties recognize and agree that in the event of a Breach or threatened Breach by Seller or any Affiliate thereof of Section 6.03(a), money damages would not be an adequate remedy to Buyer for such Breach and, even if money damages were adequate, it would be difficult to ascertain or measure with any degree of accuracy the damages sustained by Buyer therefrom. Accordingly, if there should be a Breach or threatened Breach by Seller or any Affiliate thereof of the provisions of Section 6.03(a), Buyer will be entitled to an injunction restraining Seller and/or such Affiliate from any such Breach. Nothing in the preceding sentence will limit or otherwise affect any remedies that Buyer or its Affiliates may otherwise have under Applicable Law.

(e) All of the covenants in Section 6.03(a) are intended by each party hereto to be, and will be construed as, agreements independent of any other provision in this Agreement, and the existence of any claim or cause of action of Seller against Buyer, whether predicated on this Agreement or otherwise, will not constitute a defense to the enforcement by Buyer of any covenant in Section 6.03(a). The parties hereby agree that this Section 6.03 is a material and substantial part of the transactions contemplated hereby.

 

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