EXHIBIT 10.46
NONCOMPETITION AGREEMENT
THIS
NONCOMPETITION AGREEMENT (this “ Agreement ”), is
made and entered into as of this 30th day of April, 2007, by and
between ProxyMed, Inc. d/b/a MedAvant Healthcare Solutions, a
corporation duly organized and validly existing under the laws of
the State of Florida ( “Seller” ), and
SureScripts, LLC, a limited liability company duly organized and
validly existing under the laws of the Commonwealth of Virginia (
“Buyer” ).
WHEREAS, Seller and
Buyer have entered into that certain Purchase Agreement, dated as
of April 30, 2007 (the “ Purchase Agreement ”)
whereby Buyer has agreed to purchase the Pharmacy Processing
Business of Seller, all as set forth in such Purchase
Agreement;
WHEREAS, as a material
part of the benefit of the bargain and as an inducement to Buyer,
without which Buyer would not enter into the Purchase Agreement,
Seller has promised and agreed to abide by the covenants and
promises set forth in this Agreement; and
WHEREAS, Buyer would not
enter into the Purchase Agreement or pay to Seller any of the
proposed purchase price pursuant to the Purchase Agreement without
Seller agreeing to abide by the restrictions set forth in this
Agreement.
NOW,
THEREFORE, in
consideration of the foregoing, the mutual promises hereinafter set
forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
promise and agree as follows:
1.
Incorporation of Recitals; Definitions; Acknowledgments
.
(a) The foregoing
recitals are restated and incorporated herein by reference and made
a part hereof. All capitalized terms used herein but not otherwise
defined herein shall have the meaning ascribed to them in the
Purchase Agreement.
(b) Seller acknowledges
that: (i) the Restricted Activity (as defined below) is intensely
competitive; (ii) Seller has knowledge of Seller Confidential
Information (defined below) associated with the sale of the
Pharmacy Processing Business; (iii) the disclosure by Seller of any
such Seller Confidential Information to competitors of Buyer may
place Buyer at a competitive disadvantage and may do damage,
monetary or otherwise, to Buyer; (iv) the engagement by Seller, or
by any party at any time during the Restricted Period controlling,
controlled by, or under common control with Seller (each a “
Seller Party ”) in any of the activities prohibited by
Sections 2 or 7 hereof would constitute a breach of this Agreement
and may constitute improper appropriation and/or use of such Seller
Confidential Information; (v) Seller has been advised by counsel in
connection with its entering into this Agreement; and (vi) the
noncompetition and other restrictive covenants and agreements set
forth in this Agreement are reasonable.
(c) As used herein,
“ Seller Confidential Information ” shall mean
non-public information of Seller owned and/or known by Seller
related to the Pharmacy Processing Business being purchased by
Buyer pursuant to the Purchase Agreement. “Seller
Confidential Information” shall not include any information
(i) that is generally known or becomes known to
the public
other than as a result of disclosure by Seller in breach of this
Agreement; (ii) was or becomes available to others on a
non-confidential basis from a source other than Seller; or (iii) is
disclosed with the prior written approval of Buyer.
2.
Noncompetition and Nonsolicitation . Except as otherwise specifically permitted in
this Agreement and the Purchase Agreement, from the date hereof
until April 30, 2012 (the “ Restricted Period
”), Seller and each and every Seller Party shall not,
directly or indirectly, in the United States or any territory of
the United States:
(a) (i) own, (ii)
operate, (iii) manage, (iv) lease, (v) control, and/or (vi) render
services (including consulting services) (the restriction related
to services shall be limited to services related to Electronic
Prescribing Transactions) to, be an investor in, or be a lender to,
any person, entity, or business that owns, operates, manages,
leases, or controls:
an electronic network that establishes, facilitates, and/or
maintains connectivity between and among providers, pharmacies,
and/or pharmacy benefit management companies for the purpose of
processing, routing, delivering, and/or exchanging Electronic
Prescribing Transactions (as defined below) (all of subsection (a)
to be referred to herein as the “ Restricted Activity
”);
(b) intentionally
interfere with, disrupt, or attempt to disrupt any current
contractual relationship between Buyer and any customer, supplier,
or employee of Buyer; or
(c) employ, hire, or
solicit for employment, or attempt to employ, hire, or solicit for
employment, any person employed by Buyer as of the date hereof or
during the Restricted Period, or induce or attempt to induce,
directly or indirectly, any person employed by Buyer as of the date
hereof or during the Restricted Period, to terminate his or her
employment with Buyer.
For
purposes of this Agreement, Electronic Prescribing Transactions is
defined as electronic prescribing messages (including, but not
limited to, new prescriptions, refill requests, refill responses,
stop orders), formulary and/or eligibility messages related to
prescription claims, and patient identifiable medication history as
derived from electronic prescribing messages, formulary and/or
eligibility messages, and/or the dispensed history data bases of
pharmacies, whether through true electronic data interchange or
facsimile.
3.
Exceptions . Notwithstanding the foregoing set forth in
Section 2, nothing set forth in this Agreement shall prohibit any
of the following:
(a) Seller’s
ownership of a passive investment of no more than five percent (5%)
in any publicly traded entity that engages in the Restricted
Activity; provided, that Seller may own more than five percent (5%)
of such company in the event it obtains such interest as a result
of a Change of Control (as defined below) pursuant to an arm's
length transaction negotiated in good faith not for the purpose of
circumventing the intent of this Agreement as it applies to
Seller.
2
(b) Seller’s
engagement in general employment solicitation activities to the
public at large, including posting or advertising for positions and
interviewing and hiring any employee of Buyer that apply for
positions as a result of such general postings and
advertising.
(c) Seller hiring any
employee of Buyer who (i) resigns voluntarily or (ii) is terminated
by Buyer.
(d) Seller selling its
proprietary technology applications to one or more third parties
and providing routine maintenance, upgrades, and/or enhancements to
such technology applications (so long as such
maintenance,
