EXHIBIT (d)(4)
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT is made and entered into this 14th day
of March 2003 (the "AGREEMENT"), by and between CEGEDIM S.A., a French
corporation ("CEGEDIM"), and IMS Health Incorporated, a Delaware corporation
("IMS").
RECITALS
WHEREAS, SYNAVANT Inc. plans to sell the assets and liabilities related
to its interactive marketing business to CEGEDIM and/or certain of its
Affiliates (the "TRANSACTION") pursuant to a purchase agreement (the "PURCHASE
AGREEMENT");
WHEREAS, IMS has requested, and CEGEDIM has agreed to, certain
restrictions on its ability to compete with IMS following the date hereof in
order to induce IMS to enter into a Consent and Waiver, dated as of the date
hereof, between IMS and SYNAVANT Inc., on the terms and conditions contained
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
AGREEMENT
SECTION 1. Certain Defined Terms. Certain capitalized terms shall be
defined as follows:
"AFFILIATE" shall mean, with respect to each party, any Person directly
or indirectly controlled by such party (including, without limitation, its
subsidiaries and joint ventures).
"BUSINESS" shall mean the collection of data and/or the creation,
ownership, maintenance or commercialization of databases reporting details of
the prescribing, purchasing and/or the dispensing of pharmaceutical products by
physicians, by pharmacies or by other health care providers or categories or
groupings (however defined) of physicians, pharmacies or other health care
providers, regardless in each case of the manner in which such information is
collected or disseminated which could be used to develop or commercialize
products or services which could be competitive with the Xponent type of service
provided by IMS, provided that "Business" shall not include (i) data or
databases reporting details of physician prescribing in Europe based on the
collection of information derived from physicians' electronic Medical Record
Systems (i.e., office-based systems), or (ii) data or databases reporting
details of physician prescribing in Europe based on quantitative or qualitative
assessments provided by physicians in respect of their own prescribing habits or
(iii) either the business the subject of the Transaction or the business of
CEGEDIM both of which as currently commercialised, including the extensions of
such current businesses into jurisdictions in which such businesses are not
currently commercialised.
"PERSON" shall mean any individual, corporation, partnership, firm,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, governmental authority or other entity.
"TERRITORY" shall mean the entire world.
SECTION 2. Non-Competition. Effective upon the consummation of the
Transaction, CEGEDIM agrees that for a period commencing on the date hereof and
ending on August 31, 2005 (the "RESTRICTED PERIOD"), neither CEGEDIM nor its
Affiliates will, without the express written approval of IMS, either (i) engage
in the Business anywhere in the Territory or (ii) engage in any business
whatsoever with any third party which competes with IMS or any of its Affiliates
in relation to the assets or liabilities the subject of the Transaction. In the
event that CEGEDIM wishes to (i) sell, transfer or lease all or substantially
all of the assets which are the subject of the Transaction, (ii) enter into in
any merger, consolidation or other business combination in which it may enter
with any person and as a result of which it will not be the surviving
corporation or (iii) enter into any joint venture, joint marketing, or
partnership agreements with any person, in any case prior to the termination of
the Restricted Period, CEGEDIM will (i) obtain IMS' prior written consent to the
same which consent shall not be unreasonably withheld and (ii) cause such
purchaser or surviving corporation, as the case may be, to assume CEGEDIM's
obligations under this Section 2 upon the consummation of any such transaction,
and, in the case of a joint venture, joint marketing or partnership agreement,
CEGEDIM will cause the party to such agreement, and such party will be deemed,
to be bound by the provisions of this Section 2.
SECTION 3. Remedies. CEGEDIM acknowledges and agrees that, by virtue of
its relationship with IMS, great loss and irreparable damage may be suffered by
IMS and its subsidiaries, including, without limitation, damage to the goodwill
and proprietary interests of IMS and its subsidiaries, if CEGEDIM should breach
or violate any of the terms or provisions of the covenants and agreements set
forth in Section 2 hereof. CEGEDIM agrees and consents that IMS shall be
entitled to a temporary restraining order and a permanent injunction to prevent
a breach or contemplated breach of any of the covenants or agreements of CEGEDIM
contained herein, this being in addition to any other remedy to which they are
entitled at law or in equity.
SECTION 4. Reasonableness. The parties acknowledge that the time, scope
and other provisions of this Agreement have been specifically negotiated by
sophisticated commercial parties and agree that all such provisions are
reasonable under the circumstances of the transactions contemplated by CEGEDIM
and are given as an integral and essential part of the transactions contemplated
by CEGEDIM. The parties further agree that the restrictions on competition
(including, without limitation, the period of time and the geographic area) and
the remedies for breach of such restrictions in this Agreement, are fair,
reasonable, and necessary for the protection of the interests of IMS.
SECTION 5. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (a) on the date of delivery
if delivered personally, or by telecopy or facsimile, upon confirmation of
receipt, (b) on the first business day following the date of dispatch if
delivered by a recognized next-day courier service, or (c) on the fifth business
day following the date of mailing if delivered by registered or certified
first-class mail return
receipt requested, postage prepaid. All notices hereunder shall be delivered as
set forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
(a) if to IMS, to it at:
IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with copies to:
[-]
(b) if to CEGEDIM, to it at:
000 Xxx x'Xxxxxxxxx
00000 Xxxxxxxx
Xxxxxx
Attention: [-]
Fax: [-]
with copies to:
[-]
SECTION 6. Counterparts, Facsimile Signature. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall be deemed to be one and the same
instrument. Any party may execute this Agreement by facsimile signature, and the
other parties will be entitled to rely on such facsimile signature as conclusive
evidence that this Agreement has been duly executed by such party.
SECTION 7. Entire Agreement. Effective upon the consummation of the
Transaction, this Agreement constitutes the entire agreement among all the
parties hereto and supersedes all prior agreements and understandings, oral and
written, among all the parties hereto with respect to the subject matter hereof.
If the Purchase Agreement is terminated prior to the consummation of the
Transaction, this Agreement will automatically terminate and have no further
force and effect.
SECTION 8. No Third Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to or shall confer on any Person other than the parties hereto or their
respective successors and assigns, any rights, remedies or liabilities under or
by reason of this Agreement.
SECTION 9. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other party, and any attempt to make any such
assignment without such consent shall be null and void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
SECTION 10. Amendment and Modification; Waiver. This Agreement may be
amended, modified and supplemented only by a written instrument authorized and
executed on behalf of the parties. No waiver by any party of any of the
provisions hereof shall be effective unless explicitly set forth in writing and
executed by the party so waiving. Except as provided in the preceding sentence,
no action taken pursuant to this Agreement, including any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representations, warranties, covenants, or
agreements contained herein, and in any documents delivered or to be delivered
pursuant to this Agreement. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
SECTION 11. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE
PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT
AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG
THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY ACTION OR PROCEEDING
WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION
BY A JUDGE SITTING WITHOUT A JURY.
SECTION 12. Mutual Drafting. The parties hereto have been represented
by counsel who have carefully negotiated the provisions hereof. As a
consequence, the parties do not intend that the presumptions of any laws or
rules relating to the interpretation of contracts against the drafter of any
particular clause should be applied to this Agreement and therefore waive their
effects. The provisions of this Agreement shall be interpreted in a reasonable
manner to effect the intent of the parties.
SECTION 13. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of [the State of New
York].
SECTION 14. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is found to be invalid or unenforceable in any jurisdiction, (a) a
suitable and equitable provision shall be substituted therefor in order to carry
out, so far as may be valid or enforceable, such provision and (b) the remainder
of this
Agreement and the application of such provision to other Persons or
circumstances shall not be affected by such invalidity or unenforceability, nor
shall such invalidity or unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other jurisdiction.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective duly authorized representative as of
the date first above written.
CEGEDIM S.A.
By: /s/ Xxxxxx Xxxxxxxx
_____________________________
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
IMS HEALTH INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxx
_____________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior VP-General Counsel
FIRST AMENDMENT TO
NON-COMPETITION AGREEMENT
This First Amendment to Non-Competition Agreement is made and
entered into this 10th day of April 2003 (this "AMENDMENT") between CEGEDIM
S.A., a French corporation ("CEGEDIM"), and IMS Health Incorporated, a Delaware
corporation ("IMS").
RECITALS
WHEREAS, CEGEDIM and IMS entered into a Non-Competition Agreement
dated March 14, 2003 (the "NON-COMPETITION AGREEMENT");
WHEREAS, CEGEDIM and IMS desire to amend the Non-Competition
Agreement on the terms and conditions set forth in this Amendment.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. The term "Transaction" (as defined in the Non-Competition
Agreement) is amended to include the acquisition, directly or indirectly
(including by way of merger), by CEGEDIM or one or more of its Affiliates of all
or substantially all of the capital stock of SYNAVANT Inc. and the term
"Purchase Agreement" (as defined in the Non-Competition Agreement) shall refer
to an agreement for the foregoing Transaction including the Purchase Agreement,
dated as of March 16, 2003 and any agreement evidencing the Transaction that
supercedes the purchase agreement dated March 16, 2003.
2. Except as amended and modified by this Amendment, the
Non-competition Agreement will remain in full force and effect.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized representatives as
of the date first above written.
CEGEDIM S.A.
By: /s/ Xxxxxx Xxxxxxxx
________________________
Name:
Title:
IMS HEALTH INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxx
________________________
Name:
Title:
