EXHIBIT 10.q
NONCOMPETE AGREEMENT
This Agreement dated May 31, 1995 is entered into by and between First
Financial Management Corporation, a Georgia corporation ("FFMC"), MicroBilt
Corporation, a Georgia corporation wholly owned by FFMC ("MicroBilt") (FFMC and
MicroBilt are individually referred to as a "Seller" and collectively referred
to as the "Sellers"), and C.I.S. Technologies, Inc., a Delaware Corporation (the
"Purchaser"),
RECITALS:
A. MicroBilt owns all of the issued and outstanding capital stock,
consisting of Class A common stock (the "HCCI Common Stock") of Hospital Cost
Consultants, Inc., a California Corporation (the "Company").
B. Concurrently herewith, the Purchaser is buying and MicroBilt is selling
the HCCI Common Stock upon the terms and conditions set forth in that certain
Stock Purchase and Sale Agreement dated May 11, 1995 (the "Agreement").
C. The consummation of the transactions contemplated by the Agreement will
result in a transfer to the Purchaser of the goodwill of the Company's business.
D. As a material inducement to the Purchaser to enter into the Agreement
and to acquire the outstanding capital stock of the Company, Sellers have agreed
to enter into an agreement by which they will agree not to engage in any
business which is competitive with the business of the Company or any of its
subsidiaries.
NOW, THEREFORE, in consideration of the Purchaser entering into and
consummating the Agreement and for other good and valuable consideration,
receipt of which is hereby acknowledged, the Sellers and the Purchaser agree as
follows:
1. NONCOMPETE. Subject to the last sentence of this Section 1, the
Sellers covenant and agree that, during the period commencing on the date hereof
and ending on the fifth anniversary of the date hereof (the "Noncompete
Period"), they will not, within the boundaries of the United States or of any
other countries in which the Company currently conducts its business (the
"Noncompete Territory"), directly or indirectly (through subsidiaries or
affiliates, as a partner or joint venturer, or otherwise) compete with or
conduct a business substantially similar to the business conducted by the
Company or its subsidiaries on the date hereof. Sellers further agree that,
during the Noncompete Period, they will neither directly nor indirectly call
upon, solicit, attempt to solicit, divert or take away, or interfere in any
other manner with any of the employees, customers, businesses or patrons of the
Company. Notwithstanding the foregoing, the Purchaser expressly acknowledges
that it is aware that certain of FFMC's present subsidiaries, including but not
limited to VIPS, Inc., are currently, and certain after-acquired subsidiaries of
FFMC may be, engaged in businesses that may, or may be deemed to, compete with,
or have certain products, programs or services which are similar to those of,
the Company and that such businesses,
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products, programs or services and the logical extensions thereof shall not be a
violation of any provision of the first sentence of this Section 1.
2. SELLERS' DEFAULT. In the event of a breach by the Sellers of their
obligations under this Agreement, the Purchaser shall give written notice
thereof specifying the breach of which it complains. The Sellers shall have ten
days from receipt of such notice to cure the breach. The Purchaser may
thereafter, if not so cured, obtain injunctive relief if appropriate; provided,
however, whether or not such relief is sought or obtained, the Purchaser shall
also be entitled to recover its actual consequential, direct, indirect and
punitive damages from the Sellers and shall be entitled to recover its
attorney's fees and costs, if successful.
3. NOTICES. All notices and other communications under this Agreement
shall be in writing and may be given by any of the following methods: (i)
personal delivery; (ii) facsimile transmission; (iii) registered or certified
mail, postage prepaid, return receipt requested; or (iv) overnight delivery
service requiring acknowledgment of receipt. Notices shall be sent to the
appropriate party at its address or facsimile number given below (or at such
other address or facsimile number for such party as shall be specified by notice
given hereunder).
If to the Purchaser:
C.I.S. Technologies, Inc.
One Warren Place, Suite 1900
6100 South Yale Avenue
Tulsa, Oklahoma 74136
Fax No. (918) 481-4205
Attention: Philip D. Kurtz, Chief Executive Officer
with a copy to:
Pray, Walker, Jackman, Williamson & Marlar
900 ONEOK Plaza
100 West Fifth Street
Tulsa, Oklahoma 74103
Fax No. (918) 581-5599
Attention: Thomas G. Noulles
If to the Sellers:
First Financial Management Corporation
3 Corporate Square, Suite 700
Atlanta, Georgia 30329
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Fax No. (404) 636-7632
Attention: Stephen D. Kane, Vice Chairman
with a copy to:
First Financial Management Corporation
3 Corporate Square, Suite 700
Atlanta, Georgia 30329
Fax No. (404) 636-7632
Attention: Legal Department
All such notices and communications shall be deemed received upon (i) actual
receipt thereof by the addressee, (ii) actual delivery thereof to the
appropriate address as evidenced by an acknowledged receipt, or (iii) in the
case of a facsimile transmission, upon transmission thereof by the sender and
telephonic confirmation of receipt. In the case of notices sent by facsimile
transmission, the sender shall contemporaneously mail a copy of the notice to
the addressee at the address provided for above. However, such mailing shall in
no way alter the time at which the facsimile notice is deemed received.
4. WAIVER OF BREACH. The waiver by either party hereto of a breach of any
provisions of this agreement by the other party hereto shall not operate nor be
construed as a waiver of any subsequent breach thereby. No waiver shall be
valid unless in writing and signed by the affected party hereto.
5. SUCCESSORS. The rights and obligations of the Sellers and the
Purchaser under this agreement shall inure to the respective benefit of and be
binding upon the successors and assigns of the Purchaser and the Sellers. This
agreement may not be assigned by either party without the express written
consent of the other.
6. ENTIRE AGREEMENT. This agreement contains the entire agreement between
the parties with respect to the subject matter herein. This agreement may not
be changed orally, but only by an agreement in writing signed by the parties
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
7. CONSTRUCTION. This agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be construed in
accordance with the laws of the State of Oklahoma. If for any reason any
paragraph, term or provision of this Agreement is held to be invalid or
unenforceable for any reason, such invalidity or unenforceability shall not
affect any other provisions hereof, and this agreement shall be construed and
enforced as if such other provisions hereof remain in full force and effect. If
for any reason the restrictions and covenants contained herein are held by a
court of competent jurisdiction to cover a geographical area or be
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for a length of time which is unreasonable or unenforceable, or in any other way
are construed to be too broad or to any extent invalid, then to the extent the
same are or would be valid or enforceable under applicable law, any court of
competent jurisdiction shall construe and interpret or reform this Agreement to
provide for a covenant having the maximum enforceable area, time, or other
provisions (not greater than those contained herein) as shall be valid and
enforceable under such applicable law.
EXECUTED AND DELIVERED on the date first written above.
PURCHASER:
C.I.S. TECHNOLOGIES, INC.
By: /s/ Phillip D. Kurtz
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Name: Phillip D. Kurtz
---------------------------
Title: Chairman and CEO
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SELLERS:
FIRST FINANCIAL MANAGEMENT CORPORATION
By: /s/ Stephen D. Kane
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Name: Stephen D. Kane
---------------------------
Title: Vice Chairman
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MICROBILT CORPORATION
By: /s/ Michael H. Pope
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Name: Michael H. Pope
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Title: Senior Vice President
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