COVENANT NOT TO COMPETE
THIS COVENANT NOT TO COMPETE (this "Agreement"), made this 19th day of
September, 2000 between HEALTHCOMP EVALUATION SERVICES CORPORATION, a
Nevada corporation ("Purchaser") and U.S. HEALTHWORKS, INC. a Delaware
corporation ("Shareholder");
W I T N E S S E T H:
WHEREAS, Shareholder is the sole shareholder of U.S. HealthWorks Holding
Company, Inc., a Delaware corporation ("Seller"), and whereas on this
day Shareholder, Seller and Purchaser have entered into an Acquisition
Agreement (the "Acquisition Agreement") whereby Purchaser has agreed to
purchase from Seller the Assets of the Preventive Services Division of
Seller ("PSD") and all of PSD's business operations relating to the
Business, upon the terms and subject to the conditions set forth therein
(the "Transaction"); and
WHEREAS, Purchaser will thereafter conduct the Business and operations
of PSD in the same manner as such Business was conducted by Seller
prior to the Transaction, and the Shareholder has intimate knowledge of
the business practices of PSD, which, if exploited by the Shareholder
in contravention of this Agreement, would seriously, adversely and
irreparably affect the ability of Purchaser to continue the business
previously conducted by PSD; and
WHEREAS, to induce Purchaser to enter into the Transaction, Shareholder
has agreed to execute this Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual promises
and covenants of the parties hereto set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
specifically agreed to and acknowledged, Shareholder and Purchaser,
intending to be legally bound, agree as follows:
1. Noncompetition. Shareholder covenants and agrees that, for a period
of three (3) years from the date hereof, Shareholder will not, within
the Continental United States (the "Territory"), directly or indirectly,
compete with PSD by carrying on a business which is substantially
similar to the Business (as defined in Section 5 hereof).
2. Harm to Reputation of Purchaser. Shareholder further agrees that,
from the date of this Agreement, Shareholder will not make, or cause to
be made, any type of comments or statements to any agent, employee,
customer, contractor, or any other person or entity in the Territory,
which tend, or would tend, to harm or lessen the reputation of Purchaser
in the industry.
3. Definition of "Compete". For the purposes of this Agreement, the
term "compete" shall mean with respect to the Business: (i) managing,
selling or marketing or supervising others with regard to the Business,
(ii) calling on, soliciting, taking away, accepting as a customer or
attempting to call on, solicit, take away or accept as a customer for
purposes of the Business any individual, partnership, corporation,
limited liability company or association that is or was a customer of
PSD during the twelve calendar month period immediately prior to the
date hereof with whom Shareholder had contact prior to the date hereof
at any time, (iii) soliciting, taking away or attempting to solicit or
take away any employee of the Business, either on Shareholder's own
behalf or on behalf of any other person or entity, who was an employee
of the Business during the twelve calendar month period immediately
prior to the date hereof, or (iv) for the period of this Agreement,
entering into or attempting to enter into any business substantially
similar to the Business, either alone or with any individual,
partnership, corporation, limited liability company or association.
4. Direct or Indirect Competition. For the purposes of this Agreement,
the words "directly or indirectly" as they modify the word "compete"
shall mean (i) acting as an agent, representative, consultant, officer,
director, independent contractor, or employee of any entity or
enterprise which is competing (as defined in Section 3 hereof) with the
Business, (ii) participating in any such competing entity or enterprise
as an owner, partner, limited partner, joint venturer, creditor or
stockholder (except as a stockholder holding less than one percent (1%)
interest in a corporation whose shares are actively traded on a regional
or national securities exchange or in the over-the-counter market), and
(iii) communicating to any such competing entity or enterprise the names
or addresses or any other information concerning any past, present, or
identified prospective broker or customer of PSD as of the date hereof.
5. Business. For purposes of this Agreement, the term "Business" shall
mean the provision of mobile hearing conservation, mobile respiratory
surveillance, and industrial hygiene/safety services through engineering
controls, sales of protective devices, environmental monitoring and
environmental analysis at customer site and the sale or license of
software used in such activities. For purposes of this Agreement, the
term "Business" shall not be deemed to include Occupational Medicine.
The term "Occupational Medicine" shall mean any employer or employer's
insurance paid medical services and testing relating to employees and
having specific reference to employment related matters, which involve
only pre-placement physical exams (which include pulmonary function
testing), laboratory testing, x-rays, audiometry, spirometry,
electrocardiography, drug screens, and work-related injuries and
illnesses, physical therapy and rehabilitation associated with work-
related injuries and consulting with employers regarding employer
policies and case management, with arrangements usually contemplating
such services being provided for all employees of the employer and
medical services generally defined as primary care or urgent care;
provided, however, any baseline audiometry and any baseline spirometry
services may be performed at medical clinics managed by Shareholder and
at non-mobile locations established within employers' sites. Any other
audiometry or spirometry services are subject to the provisions of
Section 7 hereof.
6. Subsequent Acquisition. Notwithstanding anything to the contrary
contained herein except for Paragraph 10, in the event that Shareholder
or any of its affiliates acquires or is acquired by another entity (in
either case, whether by asset or stock purchase, merger or
consolidation), which acquired or acquiring business engages in a
business substantially similar to the Business within the Territory (the
"Incidental Business"), the restrictions contained in Section 1 of this
Agreement shall not prohibit Shareholder, U.S. Health Works Holding
Company, Inc., any of their affiliates, or the acquiring entity, as the
case may be, from continuing to engage in the Incidental Business, but
only to the extent that the Incidental Business (i) does not constitute
more than ten percent (10%) of the aggregate annual revenues of the
acquired or acquiring business, (ii) does not contribute more than ten
percent (10%) of the aggregate annual revenues of the Business as of the
date of this Agreement, and (iii) within ten (10) days after the closing
of the acquired or acquiring transaction the Incidental Business is
offered for sale to Purchaser at a price determined by an independent
appraiser selected by Purchaser and reasonably acceptable to
Shareholder.
7. Customer Referral. Purchaser recognizes that customers receiving
Occupational Medicine services from medical practices affiliated with
Shareholder or a wholly owned subsidiary thereof have in the past and
may in the future express a need for services substantially similar to
the Business. Notwithstanding anything to the contrary in this
Agreement except for Paragraph 10, the Shareholder, its wholly owned
subsidiaries and affiliated medical practices shall be permitted to
provide services substantially similar to the Business within the
Territory to their customers, to the extent not involving soliciting
customers of the Purchaser; provided, however, that Shareholder shall
first contract the Purchaser in writing to provide such services on its
behalf. In the event that the Purchaser is unwilling or unable to
provide the services at the time and place requested, or if the customer
states in writing that it is unwilling to receive the services from the
Purchaser, the Shareholder or its affiliate may arrange for such
services to be provided to its customers through the engagement of an
entity in which it has no controlling interest, either as an employer,
owner, partner, limited partner, joint venturer, creditor or
stockholder.
8. Stationary Services. Except for Paragraph 10 nothing herein shall be
construed to limit or affect Shareholder's and its affiliates' ability
to provide occupational health programs and services including hearing
conservation and respiratory surveillance using stationary operations,
at or through a stationary medical clinic owned or managed by
Shareholder.
9. Use of Certain Truck. Except for Paragraph 10 nothing contained
herein shall be construed to limit or affect Shareholder's and its
affiliates' ability to own and use in the Houston, Texas metropolitan
area the 1995 GMC audio testing truck currently housed at 7127 North
Loop East, Houston Texas; provided, however, that such truck shall not
in any way be used to provide services included in the Business as
defined herein.
10. Confidential Data. Shareholder further agrees that, for a period of
five (5) years from the date of this Agreement, Shareholder will keep
confidential and not, directly or indirectly, divulge to anyone nor use
or otherwise appropriate for its own benefit, any pricing information,
marketing information or sales technique of the business and assets
obtained during the Transaction, or any other of the following
confidential information or documents of or relating to the business and
assets obtained during the Transaction: confidential records, computer
software programs, customer lists, terms of license agreements, terms of
Purchaser's contracts with suppliers, and planning and financial
information of Purchaser (hereinafter referred to as the "Confidential
Data"). Shareholder hereby acknowledges and agrees that the
prohibitions against disclosure of Confidential Data recited herein are
in addition to, and not in lieu of, any rights or remedies which
Purchaser may have available pursuant to the laws of any jurisdiction or
at common law to prevent the disclosure of trade secrets or proprietary
information, and the enforcement by Purchaser of its rights and remedies
pursuant to this Agreement shall not be construed as a waiver of any
other rights or available remedies which it may possess in law or equity
absent this Agreement.
In the event that Shareholder or any of its representatives or
affiliates become legally compelled (by deposition, interrogatory,
request for documents, subpoena, civil investigative demand, any similar
process or otherwise) to disclose any of the Confidential Data,
Shareholder shall provide Purchaser with prompt prior written notice of
such requirement so that Purchaser may seek a protective order or other
appropriate remedy and/or waive compliance with the terms of this
agreement. In the event that such protective order or other remedy is
not obtained, or that Purchaser waives compliance with the provisions
hereof, Shareholder agrees to furnish only that portion of the
Confidential Data that is required in the written opinion of its
counsel, who shall be reasonably satisfactory to Purchaser, and to
exercise best efforts to obtain reliable assurance that confidential
treatment will be accorded such of the disclosed information which
Purchaser so designates.
11. Equitable Relief. Shareholder acknowledges that its expertise in
the Business described herein is of a special, unique, unusual,
extraordinary, and intellectual character, which gives said expertise a
peculiar value, that a breach by Shareholder of the provisions of this
Agreement cannot reasonably or adequately be compensated in damages in
an action at law and that a breach of any of the provisions contained in
this Agreement will cause Purchaser irreparable injury and damage.
Shareholder further acknowledges that it possesses unique skills,
knowledge and ability and that solicitation in violation of this
Agreement or any other breach of the provisions of this Agreement would
be extremely detrimental to Purchaser. By reason thereof, Shareholder
agrees that Purchaser shall be entitled, in addition to any other
remedies it may have under this Agreement or otherwise, to preliminary
and permanent injunctive and other equitable relief to prevent or
curtail any breach of this Agreement; provided, however, that no
specification in this Agreement of a specific legal or equitable remedy
shall be construed as a waiver or prohibition against the pursuing of
other legal or equitable remedies in the event of such a breach.
12. Severability. In the event that any provision of this Agreement or
any word, phrase, clause, sentence or other portion thereof (including,
without limitation, the geographical and temporal restrictions contained
herein) should be held to be unenforceable or invalid for any reason,
such provision or portion thereof shall be modified or deleted in such a
manner so as to make this Agreement, as modified, legal and enforceable
to the fullest extent permitted under applicable laws.
13. Successors and Assigns. The covenants, terms and provisions set
forth herein shall inure to the benefit of, and be enforceable by,
Purchaser and its successors, assigns and successors in interest,
including, without limitation, any corporation with which Purchaser may
be merged or by which it may be acquired. This Agreement is
nonassignable except that Purchaser's rights, duties and obligations
under this Agreement may be assigned to its acquirer in the event
Purchaser is merged, acquired, sells substantially all of the assets of
the Business, or transfers the Business to any other entity; provided,
however, that prior to any such sale or assignment, the assignee shall
assume all of the Purchaser's duties and obligations hereunder. In the
event of any such assignment notice shall be given in the manner set
forth in Section 20 within thirty (30) days after such assignment.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with regard to the subject matter hereof and
supersedes all other agreements relating to the subject matter hereof.
There are no agreements, understandings, specific restrictions,
warranties or representations relating to said subject matter between
the parties other than those set forth herein or herein provided.
15. Capitalized Terms. Except as otherwise indicated herein,
capitalized terms shall have the meaning set forth in that certain
Acquisition Agreement among Purchaser, Shareholder and Seller dated
September 15, 2000.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will take effect as an original and all of
which shall evidence one and the same agreement.
17. Governing Law. The terms of this Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
18. Breach of Agreement. Shareholder agrees that in the event it
breaches any provision of this Agreement, Purchaser shall be entitled,
in addition to any other remedies it may have under this Agreement, to
withhold and offset to the extent of any liability, loss, damage or
injury from such breach, and to withhold the amount of any such
liability, loss, damage or injury that Purchaser reasonably believes it
may sustain, any payments due to Shareholder or any other party pursuant
to the Acquisition Agreement or this Agreement.
19. Pronouns. All pronouns used herein shall be deemed to refer to the
masculine, feminine or neuter gender as the context requires.
20. Modification. Neither this Agreement nor any provision hereof may
be changed, waived, discharged or terminated orally, but only by an
agreement in writing signed by the party against whom or which the
enforcement of such change, waiver, discharge or termination is sought.
21. Notice. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand, mailed by
registered or certified mail, return receipt requested, or sent by
Federal Express or other nationally recognized overnight delivery
service addressed as follows:
21.1 If to Shareholder:
U.S. HealthWorks, Inc.
3655 North Point Parkway, Suite 150
Alpharetta, GA 30005
Attention: Mr. Richard Kampa, Chief Executive Officer
and to:
U.S. HealthWorks, Inc.
3655 North Point Parkway, Suite 150
Alpharetta, GA 30005
Attention: General Counsel
21.2 If to Purchaser:
Healthcomp Evaluation Services Corporation
2001 Siesta Drive, Suite 302
Sarasota, FL 34239
Attn: David W. Nabors, Senior Vice President
and to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
Attention: Barry J. Stein, Esq.
21.3 If delivered personally, the date on which a notice, request,
instruction or document is delivered shall be the date on which such
delivery is made. If delivered by mail or overnight delivery service,
the date on which such notice, request, instruction or document is
received shall be the date of delivery. In the event any such notice,
request, instruction or document is mailed or sent to a party in
accordance with this Section 20 and is returned to the sender as
nondeliverable, then such notice, request, instruction or document shall
be deemed to have been delivered or received on the fifth day following
the deposit of such notice, request, instruction or document in the
United States mails or overnight delivery service, as the case may be.
21.4 Any party hereto may change its address specified for notices
herein by designating a new address by notice in accordance with this
Section 20.
**********IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
U.S. HEALTHWORKS, INC.
"Shareholder"
By:_________________________________
Name:
Title:
HEALTHCOMP EVALUATION SERVICES CORPORATION
"Purchaser"
By:_________________________________
Name:
Title:
COVENANT NOT TO COMPETE
THIS COVENANT NOT TO COMPETE (this "Agreement"), made this 19th day of
September, 2000 between HEALTHCOMP EVALUATION SERVICES CORPORATION, a
Nevada corporation ("Purchaser") and U.S. HEALTHWORKS HOLDING COMPANY,
INC. ("Seller"), a Delaware corporation and wholly owned subsidiary of
U.S. HealthWorks, Inc., a Delaware corporation ("Shareholder");
W I T N E S S E T H:
WHEREAS, Shareholder is the sole shareholder of Seller, and whereas on
this day Shareholder, Seller and Purchaser have entered into an
Acquisition Agreement (the "Acquisition Agreement") whereby Purchaser
has agreed to purchase from Seller the Assets of the Preventive
Services Division of Seller ("PSD") and all of PSD's business
operations relating to the Business, upon the terms and subject to the
conditions set forth therein (the "Transaction"); and
WHEREAS, Purchaser will thereafter conduct the Business and operations
of PSD in the same manner as such Business was conducted by Seller
prior to the Transaction, and the Seller has intimate knowledge of the
business practices of PSD, which, if exploited by the Seller in
contravention of this Agreement, would seriously, adversely and
irreparably affect the ability of Purchaser to continue the business
previously conducted by PSD; and
WHEREAS, to induce Purchaser to enter into the Transaction, Seller has
agreed to execute this Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual promises
and covenants of the parties hereto set forth herein, and other good
and valuable consideration, the receipt and sufficiency of which are
hereby specifically agreed to and acknowledged, Seller and Purchaser,
intending to be legally bound, agree as follows:
1. Noncompetition. Seller covenants and agrees that, for a period of
three (3) years from the date hereof, Seller will not, within the
Continental United States (the "Territory"), directly or indirectly,
compete with PSD by carrying on a business which is substantially
similar to the Business (as defined in Section 5 hereof).
2. Harm to Reputation of Purchaser. Seller further agrees that, from
the date of this Agreement, Seller will not make, or cause to be made,
any type of comments or statements to any agent, employee, customer,
contractor, or any other person or entity in the Territory, which
tend, or would tend, to harm or lessen the reputation of Purchaser in
the industry.
3. Definition of "Compete". For the purposes of this Agreement, the
term "compete" shall mean with respect to the Business: (i) managing,
selling or marketing or supervising others with regard to the
Business, (ii) calling on, soliciting, taking away, accepting as a
customer or attempting to call on, solicit, take away or accept as a
customer for purposes of the Business any individual, partnership,
corporation, limited liability company or association that is or was a
customer of PSD during the twelve calendar month period immediately
prior to the date hereof with whom Seller had contact prior to the
date hereof at any time, (iii) soliciting, taking away or attempting
to solicit or take away any employee of the Business, either on
Seller's own behalf or on behalf of any other person or entity, who
was an employee of the Business during the twelve calendar month
period immediately prior to the date hereof, or (iv) for the period of
this Agreement, entering into or attempting to enter into any business
substantially similar to the Business, either alone or with any
individual, partnership, corporation, limited liability company or
association.
4. Direct or Indirect Competition. For the purposes of this
Agreement, the words "directly or indirectly" as they modify the word
"compete" shall mean (i) acting as an agent, representative,
consultant, officer, director, independent contractor, or employee of
any entity or enterprise which is competing (as defined in Section 3
hereof) with the Business, (ii) participating in any such competing
entity or enterprise as an owner, partner, limited partner, joint
venturer, creditor or stockholder (except as a stockholder holding
less than one percent (1%) interest in a corporation whose shares are
actively traded on a regional or national securities exchange or in
the over-the-counter market), and (iii) communicating to any such
competing entity or enterprise the names or addresses or any other
information concerning any past, present, or identified prospective
broker or customer of PSD as of the date hereof.
5. Business. For purposes of this Agreement, the term "Business"
shall mean the provision of mobile hearing conservation, mobile
respiratory surveillance, and industrial hygiene/safety services
through engineering controls, sales of protective devices,
environmental monitoring and environmental analysis at customer site
and the sale or license of software used in such activities. For
purposes of this Agreement, the term "Business" shall not be deemed to
include Occupational Medicine.
The term "Occupational Medicine" shall mean any employer or employer's
insurance paid medical services and testing relating to employees and
having specific reference to employment related matters, which involve
only pre-placement physical exams (which include pulmonary function
testing), laboratory testing, x-rays, audiometry, spirometry,
electrocardiography, drug screens, and work-related injuries and
illnesses, physical therapy and rehabilitation associated with work-
related injuries and consulting with employers regarding employer
policies and case management, with arrangements usually contemplating
such services being provided for all employees of the employer and
medical services generally defined as primary care or urgent care;
provided, however, any baseline audiometry or any baseline spirometry
services may be performed at medical clinics managed by Seller and at
non-mobile locations established within employers' sites. Any other
audiometry or spirometry services are subject to the provisions of
Section 7 hereof.
6. Subsequent Acquisition. Notwithstanding anything to the contrary
contained herein except for Paragraph 10, in the event that Seller or
any of its affiliates acquires or is acquired by another entity (in
either case, whether by asset or stock purchase, merger or
consolidation), which acquired or acquiring business engages in a
business substantially similar to the Business within the Territory
(the "Incidental Business"), the restrictions contained in Section 1
of this Agreement shall not prohibit Seller, Shareholder, any of their
affiliates, or the acquiring entity, as the case may be, from
continuing to engage in the Incidental Business, but only to the
extent that the Incidental Business (i) does not constitute more than
ten percent (10%) of the aggregate annual revenues of the acquired or
acquiring business, (ii) does not contribute more than ten percent
(10%) of the aggregate annual revenues of the Business as of the date
of this Agreement, and (iii) within ten (10) days after the closing of
the acquired or acquiring transaction the Incidental Business is
offered for sale to Purchaser at a price determined by an independent
appraiser selected by Purchaser and reasonably acceptable to Seller.
7. Customer Referral. Purchaser recognizes that customers receiving
Occupational Medicine services from medical practices affiliated with
Seller or a wholly owned subsidiary thereof have in the past and may
in the future express a need for services substantially similar to the
Business. Notwithstanding anything to the contrary in this Agreement
except for Paragraph 10, the Seller, its wholly owned subsidiaries and
affiliated medical practices shall be permitted to provide services
substantially similar to the Business within the Territory to their
customers, to the extent not involving soliciting customers of the
Purchaser; provided, however, that Seller shall first contract the
Purchaser in writing to provide such services on its behalf. In the
event that the Purchaser is unwilling or unable to provide the
services at the time and place requested, or if the customer states in
writing that it is unwilling to receive the services from the
Purchaser, the Seller or its affiliate may arrange for such services
to be provided to its customers through the engagement of an entity in
which it has no controlling interest, either as an employer, owner,
partner, limited partner, joint venturer, creditor or stockholder.
8. Stationary Services. Except for Paragraph 10 nothing herein shall
be construed to limit or affect Seller's and its affiliates' ability
to provide occupational health programs and services including hearing
conservation and respiratory surveillance using stationary operations,
at or through a stationary medical clinic owned or managed by Seller.
9. Use of Certain Truck. Except for Paragraph 10 nothing contained
herein shall be construed to limit or affect Seller's and its
affiliates' ability to own and use in the Houston, Texas metropolitan
area the 1995 GMC audio testing truck currently housed at 7127 North
Loop East, Houston Texas; provided, however, that such truck shall not
in any way be used to provide services included in the Business as
defined herein.
10. Confidential Data. Seller further agrees that, for a period of
five (5) years from the date of this Agreement, Seller will keep
confidential and not, directly or indirectly, divulge to anyone nor
use or otherwise appropriate for its own benefit, any pricing
information, marketing information or sales technique of the business
and assets obtained during the Transaction, or any other of the
following confidential information or documents of or relating to the
business and assets obtained during the Transaction: confidential
records, computer software programs, customer lists, terms of license
agreements, terms of Purchaser's contracts with suppliers, and
planning and financial information of Purchaser (hereinafter referred
to as the "Confidential Data"). Seller hereby acknowledges and agrees
that the prohibitions against disclosure of Confidential Data recited
herein are in addition to, and not in lieu of, any rights or remedies
which Purchaser may have available pursuant to the laws of any
jurisdiction or at common law to prevent the disclosure of trade
secrets or proprietary information, and the enforcement by Purchaser
of its rights and remedies pursuant to this Agreement shall not be
construed as a waiver of any other rights or available remedies which
it may possess in law or equity absent this Agreement.
In the event that Seller or any of its representatives or affiliates
become legally compelled (by deposition, interrogatory, request for
documents, subpoena, civil investigative demand, any similar process
or otherwise) to disclose any of the Confidential Data, Seller shall
provide Purchaser with prompt prior written notice of such requirement
so that Purchaser may seek a protective order or other appropriate
remedy and/or waive compliance with the terms of this agreement. In
the event that such protective order or other remedy is not obtained,
or that Purchaser waives compliance with the provisions hereof, Seller
agrees to furnish only that portion of the Confidential Data that is
required in the written opinion of its counsel, who shall be
reasonably satisfactory to Purchaser, and to exercise best efforts to
obtain reliable assurance that confidential treatment will be accorded
such of the disclosed information which Purchaser so designates.
11. Equitable Relief. Seller acknowledges that its expertise in the
Business described herein is of a special, unique, unusual,
extraordinary, and intellectual character, which gives said expertise
a peculiar value, that a breach by Seller of the provisions of this
Agreement cannot reasonably or adequately be compensated in damages in
an action at law and that a breach of any of the provisions contained
in this Agreement will cause Purchaser irreparable injury and damage.
Seller further acknowledges that it possesses unique skills, knowledge
and ability and that solicitation in violation of this Agreement or
any other breach of the provisions of this Agreement would be
extremely detrimental to Purchaser. By reason thereof, Seller agrees
that Purchaser shall be entitled, in addition to any other remedies it
may have under this Agreement or otherwise, to preliminary and
permanent injunctive and other equitable relief to prevent or curtail
any breach of this Agreement; provided, however, that no specification
in this Agreement of a specific legal or equitable remedy shall be
construed as a waiver or prohibition against the pursuing of other
legal or equitable remedies in the event of such a breach.
12. Severability. In the event that any provision of this Agreement
or any word, phrase, clause, sentence or other portion thereof
(including, without limitation, the geographical and temporal
restrictions contained herein) should be held to be unenforceable or
invalid for any reason, such provision or portion thereof shall be
modified or deleted in such a manner so as to make this Agreement, as
modified, legal and enforceable to the fullest extent permitted under
applicable laws.
13. Successors and Assigns. The covenants, terms and provisions set
forth herein shall inure to the benefit of, and be enforceable by,
Purchaser and its successors, assigns and successors in interest,
including, without limitation, any corporation with which Purchaser
may be merged or by which it may be acquired. This Agreement is
nonassignable except that Purchaser's rights, duties and obligations
under this Agreement may be assigned to its acquirer in the event
Purchaser is merged, acquired, sells substantially all of the assets
of the Business, or transfers the Business to any other entity;
provided, however, that prior to any such sale or assignment, the
assignee shall assume all of the Purchaser's duties and obligations
hereunder. In the event of any such assignment notice shall be given
in the manner set forth in Section 20 within thirty (30) days after
such assignment.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with regard to the subject matter hereof
and supersedes all other agreements relating to the subject matter
hereof. There are no agreements, understandings, specific
restrictions, warranties or representations relating to said subject
matter between the parties other than those set forth herein or herein
provided.
15. Capitalized Terms. Except as otherwise indicated herein,
capitalized terms shall have the meaning set forth in that certain
Acquisition Agreement among Purchaser, Shareholder and Seller dated
September 15, 2000.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will take effect as an original and all of
which shall evidence one and the same agreement.
17. Governing Law. The terms of this Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia.
18. Breach of Agreement. Seller agrees that in the event it breaches
any provision of this Agreement, Purchaser shall be entitled, in
addition to any other remedies it may have under this Agreement, to
withhold and offset to the extent of any liability, loss, damage or
injury from such breach, and to withhold the amount of any such
liability, loss, damage or injury that Purchaser reasonably believes
it may sustain, any payments due to Seller or any other party pursuant
to the Acquisition Agreement or this Agreement.
19. Pronouns. All pronouns used herein shall be deemed to refer to
the masculine, feminine or neuter gender as the context requires.
20. Modification. Neither this Agreement nor any provision hereof may
be changed, waived, discharged or terminated orally, but only by an
agreement in writing signed by the party against whom or which the
enforcement of such change, waiver, discharge or termination is
sought.
21. Notice. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand, mailed
by registered or certified mail, return receipt requested, or sent by
Federal Express or other nationally recognized overnight delivery
service addressed as follows:
21.1 If to Seller:
U.S. HealthWorks, Inc.
3655 North Point Parkway, Suite 150
Alpharetta, GA 30005
Attention: Mr. Richard Kampa, Chief Executive Officer
and to:
U.S. HealthWorks, Inc.
3655 North Point Parkway, Suite 150
Alpharetta, GA 30005
Attention: General Counsel
21.2 If to Purchaser:
Healthcomp Evaluation Services Corporation
2001 Siesta Drive, Suite 302
Sarasota, FL 34239
Attn: David W. Nabors, Senior Vice President
and to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
Attention: Barry J. Stein, Esq.
21.3 If delivered personally, the date on which a notice, request,
instruction or document is delivered shall be the date on which such
delivery is made. If delivered by mail or overnight delivery service,
the date on which such notice, request, instruction or document is
received shall be the date of delivery. In the event any such notice,
request, instruction or document is mailed or sent to a party in
accordance with this Section 20 and is returned to the sender as
nondeliverable, then such notice, request, instruction or document
shall be deemed to have been delivered or received on the fifth day
following the deposit of such notice, request, instruction or document
in the United States mails or overnight delivery service, as the case
may be.
21.4 Any party hereto may change its address specified for notices
herein by designating a new address by notice in accordance with this
Section 20.
**********
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
U.S. HEALTHWORKS HOLDING COMPANY, INC.
"Seller"
By:_________________________________
Name:
Title:
HEALTHCOMP EVALUATION SERVICES CORPORATION
"Purchaser"
By:_________________________________
Name:
Title: