Exhibit 10.9
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT dated this 4th day of December, 1996 by and
between Boron XxXxxx & Associates, Inc., a Delaware corporation (the "Company"),
and Xxxxxxx Xxxxx (the "Owner"). Reference is made to that certain Stock
Redemption Agreement (the "Redemption Agreement") dated as of December 4, 1996
pursuant to which the Company has agreed to redeem stock held by the Owner in
consideration of a substantial cash payment and to make a substantial deferred
compensation payment, subject to the terms and conditions set forth in the
Redemption Agreement, and that certain Preferred Stock Purchase Agreement dated
as of December 4, 1996 (the "Purchase Agreement"), which contemplates an
investment in the Company by the Investors named therein, the proceeds of which
will be used partially to fund payments to the Owner. Capitalized terms used in
this Agreement and not defined herein shall have the meanings ascribed to them
in the Redemption Agreement.
WITNESSETH
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WHEREAS, the Owner has heretofore held a controlling interest in the
Company, will hold an equity interest in the Company and is a senior officer
thereof;
WHEREAS, as a material inducement to the Company to enter into the
Redemption Agreement and the Purchase Agreement and in consideration of the
Company's covenants and agreements contained therein, and of the payment made
pursuant to Section 1(b) hereof, and in further consideration of the covenants
and agreements set forth herein, and in reflection of the fact that investors
are making substantial investments in the Company concurrently herewith in
partial reliance on this Agreement, the Owner has agreed to execute and deliver
this Agreement; and
WHEREAS, the execution and delivery by the Owner of this Agreement is a
condition to the Company's willingness to consummate the transactions described
herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Non-Competition. In view of the fact that any activity of the
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Owner in violation of the terms hereof would deprive the Company and its
subsidiaries (as defined below), if any, and the investors under the Purchase
Agreement of the benefit of their bargains under the Redemption Agreement and
the Purchase Agreement, as a material inducement to and a condition precedent of
the Company's payment obligations hereunder, in consideration of the payment of
the consideration to be paid by the Company pursuant to Section 1(b) below and
the other covenants set forth herein, and to preserve the goodwill associated
with the
Boron, XxXxxx business, the Owner hereby agrees to the following restrictions on
his activities:
(a) Non-Competition Agreement. The Owner hereby agrees that during
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the period commencing on the date hereof and ending on the date which is the
later of (i) the fourth anniversary of the date hereof or (ii) the first
anniversary of the date on which the Owner's employment with the Company and its
subsidiaries terminates for any reason, he will not, without the express written
consent of the Company, directly or indirectly, anywhere in the United States,
engage in any activity which is, or participate or invest in, or provide or
facilitate the provision of financing to, or assist (whether as owner, part-
owner, shareholder, partner, director, officer, trustee, employee, agent or
consultant, or in any other capacity), any business, organization or person
other than the Company (or any affiliate of the Company), and including
particularly National Medical Discussions, Inc. and affiliates (other than the
wind-up of its affairs) or any such business, organization or person involving,
or which is, a family member of the Owner, whose business, activities, products
or services are competitive with any of the business, activities, products or
services conducted or offered by the Company and its subsidiaries during any
period in which the Owner serves as an officer or employee of the Company or any
of its subsidiaries, which business, activities, products and services shall
include in any event the provision of marketing services to and related
marketing activities involving pharmaceutical companies, as well as healthcare
telemarketing. Without implied limitation, the forgoing covenant shall include
hiring or engaging or attempting to hire or engage for or on behalf of himself
or any such competitor any officer or employee of the Company or any of its
direct and/or indirect subsidiaries, encouraging for or on behalf of himself or
any such competitor any such officer or employee to terminate his or her
relationship or employment with the Company or any of its direct or indirect
subsidiaries, soliciting for or on behalf of himself or any such competitor any
client of the Company or any of its direct or indirect subsidiaries and
diverting to any person (as hereinafter defined) any client or business
opportunity of the Company or any of any of its direct or indirect subsidiaries.
Notwithstanding anything herein to the contrary, the Owner may make passive
investments in any enterprise the shares of which are publicly traded if such
investment constitutes less than five (5) percent of the equity of such
enterprise.
Neither the Owner nor any business entity controlled by him is a party to
any contract, commitment, arrangement or agreement which could, following the
date hereof, restrain or restrict the Company or any subsidiary or affiliate of
the Company from carrying on its business or restrain or restrict the Owner from
performing his obligations under his Employment Agreement with the Company and a
subsidiary of the Company of even date, and as of the date of this Agreement the
Owner has no business interests in or relating to the pharmaceutical industry
whatsoever other than his interest in the Company, other than interests in
public companies of less than five (5) percent.
For purposes of this Agreement, any reference to the subsidiaries of the
Company shall be deemed to include all entities directly or indirectly
controlled by it through an ownership of more than fifty percent (50%) of the
voting interests, and the term "person" shall mean an individual, a corporation,
an association, a partnership, an estate, a trust, and any other entity or
organization.
(b) Non-Competition Payment. In consideration of the execution and
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delivery by the Owner of this Agreement, on the date hereof the Company shall
make a cash payment to the Owner in the amount of $10,000.
Section 2. Scope of Agreement. The parties acknowledge that the time,
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scope, geographic area and other provisions of this Agreement have been
specifically negotiated by sophisticated commercial parties and agree that (a)
all such provisions are reasonable under the circumstances of the transactions
contemplated hereby, (b) are given as an integral and essential part of the
transactions contemplated and (c) but for the covenants of the Owner contained
in this Agreement, the Company and investors in the Company would not have
entered into or consummated the transactions contemplated hereby. The Owner has
independently consulted with his counsel and has been advised in all respects
concerning the reasonableness and proprietary of the covenants contained herein,
with specific regard to the business to be conducted by Company and its
subsidiaries.
Section 3. Certain Remedies; Severability. It is specifically understood
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and agreed that any breach of the provisions of this Agreement by the Owner or
any of his affiliates will result in irreparable injury to the Company and its
subsidiaries, that the remedy at law alone will be an inadequate remedy for such
breach and that, in addition to any other remedy it may have, the Company and
its subsidiaries shall be entitled to enforce the specific performance of this
Agreement by the Owner through both temporary and permanent injunctive relief
without the necessity of proving actual damages, but without limitation of their
right to damages and any and all other remedies available to them, it being
understood that injunctive relief is in addition to, and not in lieu of, such
other remedies. In the event that any covenant contained in this Agreement
shall be determined by any court of competent jurisdiction to be unenforceable
by reason of its extending for too great a period of time or over too great a
geographical area or by reason of its being too extensive in any other respect,
it shall be interpreted to extend only over the maximum period of time for which
it may be enforceable and/or over the maximum geographical area as to which it
may be enforceable and/or to the maximum extent in all other respects as to
which it may be enforceable, all as determined by such court in such action.
The existence of any claim or cause of action which the Owner may have against
the Company or any of its subsidiaries or affiliates shall not constitute a
defense or bar to the enforcement of any of the provisions of this Agreement.
Section 4. Jurisdiction. The parties hereby irrevocably submit to the
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non-exclusive jurisdiction of the courts of the State of New Jersey to construe
and enforce the covenants contained in this Agreement. In the event that the
courts of any state shall hold such covenants
unenforceable (in whole or in part) by reason of the breadth of such scope or
otherwise, it is the intention of the parties hereto that such determination
shall not bar or in any way affect the right of the Company or any its
subsidiaries to the relief provided for herein in the courts of any other state
within the geographic scope of such covenants, as to breaches of such covenants
in such other respective states, the above covenants as they relate to each
state being, for this purpose, severable into diverse and independent covenants.
Section 5. Notices. All notices, requests, demands and other
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communications hereunder shall be deemed to have been duly given if delivered,
telecopied or mailed by certified or registered mail:
To the Company: Boron, XxXxxx & Associates, Inc.
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, XX 00000
Attn: President
To the Owner: Xxxxxxx Xxxxx
x/x Xxxxx, XxXxxx & Associates, Inc.
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, XX 00000
or to such other address of which any party may notify the other parties as
provided above. Notices shall be effective as of the date of such delivery or
mailing.
Section 6. Miscellaneous. This Agreement shall be governed by and
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construed under the laws of the State of New Jersey, and shall not be modified
or discharged in whole or in part except by an agreement in writing signed by
the Company and the Owner. The prevailing party in any controversy hereunder
shall be entitled to reasonable attorneys' fees and expenses. The failure of
any of the parties to require the performance of a term or obligation or to
exercise any right under this Agreement or the waiver of any breach hereunder
shall not prevent subsequent enforcement of such term or obligation or exercise
of such right or the enforcement at any time of any other right hereunder or be
deemed a waiver of any subsequent breach of the provision so breached, or of any
other breach hereunder. This Agreement shall inure to the benefit of, and be
binding upon, successors of the Company by way of merger, consolidation or
transfer of substantially all the assets of the Company, and may not be assigned
by the Owner. This Agreement supersedes all prior understandings and agreements
between the parties relating to the subject matter hereof, including without
limitation the Covenant Not to Compete included as part of that certain
Stockholders' Agreement between Xxxxxxx Xxxxx and Xxxxxxx XxXxxx and Boron,
XxXxxx & Associates, Inc., dated July 1, 1996.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the date first set forth above.
BORON, XxXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
Title: President
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
