EXHIBIT 10.6
NONCOMPETITION, NONSOLICITATION
AND STOCK SALE
FORBEARANCE
AGREEMENT
This NONCOMPETITION,
NONSOLICITATION AND STOCK SALE FORBEARANCE AGREEMENT (this
“ Agreement ”), dated as of January 18,
2006, is by and among Allscripts Healthcare Solutions, Inc., a
Delaware corporation (the “ Parent ”), John P.
McConnell (“ JPM ”) and McConnell Venture
Partners Fund, LLC (together with JPM, the “
Shareholders ”).
WHEREAS , the Shareholders are the owners of capital
stock (the “ Shares ”) of A4 Healthcare
Solutions, Inc., a North Carolina corporation (the “
Company ”);
WHEREAS , Parent, Quattro Merger Sub Corp., a North
Carolina corporation and a wholly-owned subsidiary of Parent
(“ Sub ”), the Company and the shareholder
representative named therein propose to enter into an Agreement of
Merger (the “ Merger Agreement ”), which
provides, upon the terms and subject to the conditions thereof, for
the merger of Sub with and into the Company (the “
Merger ”);
WHEREAS , as an inducement to Parent and Sub to enter
into the Merger Agreement, Parent has requested that the
Shareholders enter into, and in order to induce Parent and Sub to
enter into, the Merger Agreement the Shareholders have agreed to
enter into certain arrangements with respect to the
Shareholders’ business activities following the Merger;
and
WHEREAS , the execution of the Merger Agreement by
Parent and Sub is a precondition for the Shareholders to receive
any consideration in connection with the Merger;
NOW, THEREFORE
, in consideration of the premises,
the mutual promises set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Effectiveness of Agreement
. This Agreement shall become effective as of the time of
effectiveness of the Merger (the “ Effective Time
”), and this Agreement shall terminate upon the termination
of the Merger Agreement in accordance with the terms
thereof.
2. Restrictive Covenants
.
2.1. Confidentiality . Each
Shareholder understands and acknowledges that such Shareholder has
had access to and has learned (a) information proprietary to
the Company and the Subsidiaries with respect to the business of
developing, marketing or providing (i) clinical information
software or systems, including emergency department information
systems, (ii) electronic medical records software or systems,
(iii) physician practice management software or systems,
(iv) care management solutions, (v) healthcare disaster
recovery solutions, or (vi) patient portal solutions (the
“ Business ”) and (b) other information
proprietary to the Company and its subsidiaries, including, without
limitation, trade secrets, processes, patent and trademark
applications, product development, price, customer and supply
lists, pricing and marketing plans,
policies and strategies, details of client and
consultant contracts, operations methods, product development
techniques, business acquisition plans and all other confidential
information with respect to the Business (collectively, “
Proprietary Information ”). Each Shareholder agrees
that, from and after the Effective Time for a period of four
(4) years thereafter, such Shareholder (i) will keep
confidential all Proprietary Information, (ii) will not,
directly or indirectly, disclose any Proprietary Information to any
third party or use any Proprietary Information in any way and
(iii) will not, directly or indirectly, misuse, misappropriate
or exploit any Proprietary Information in any way. The restrictions
contained in this Section 2.1 shall not apply to any
information which (x) is at the Effective Time or thereafter
becomes available to the public other than as a result of a
disclosure, directly or indirectly, by the Shareholders, or
(y) is required to be disclosed by applicable requirements of
law, provided that, in such event, each Shareholder shall use
reasonable efforts to give reasonable advance notice of such
requirement to Parent to enable Parent or the Company to seek a
protective order or other appropriate remedy with respect to such
disclosure.
2.2. Restrictions on Competitive
Activities . Each Shareholder further agrees that, from and
after the Effective Time for a period of four years thereafter,
each Shareholder shall not, directly or indirectly, (whether as
principal, agent, employee, consultant, independent contractor,
partner or otherwise) own, manage, operate, control, participate
in, perform services for or otherwise carry on a business similar
to or competitive with the Business anywhere in the United States
(it being understood by the parties hereto that the Business is not
limited to any particular region because such Business has been
conducted by the Company throughout the United States and the
prohibited activities may be engaged in effectively from any
location in the United States). Notwithstanding the foregoing,
nothing set forth in this Section 2.2 shall prohibit each
Shareholder from owning not in excess of two percent (2%) in
the aggregate of any class of capital stock of any corporation if
such stock is publicly traded and listed on any national or
regional stock exchange or on the Nasdaq Stock Market.
2.3. Restrictions on
Solicitation; No-Hire . Each Shareholder further agrees that,
from and after the Effective Time for a period of three
(3) years thereafter, each Shareholder shall not, directly or
indirectly: (a) deliberately take any action that would
interfere with (i) any contractual or customer relationship of
the Company or its Affiliates in respect of the Business or
(ii) any relationship of the Company or its Affiliates with
its respective employees in respect of the Business or
(b) soli
