1
EXHIBIT 2.6
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (the "Agreement") is made this 29th day
of November 1999 (the "Closing Date"), by and between Xxxxxxx X. Xxxxxxx (the
"Employee"), and The TriZetto Group, Inc., a Delaware corporation ("TriZetto" or
the "Company"), with reference to the following:
A. The Company provides Internet-enabled application services and
business portals for the healthcare industry within all of the states of the
United States of America and the District of Columbia (the "Business"). The
Company has three wholly-owned subsidiaries, Xxxxxxx & Associates, Inc., a
Colorado corporation, Xxxxxxxx Health Enterprises, Inc., a California
corporation, and Creative Business Solutions, Inc., a Texas corporation, which
also engage in the Business. The four entities are hereinafter referred to
collectively as "TriZetto."
B. The Company , Xxxxxxx Corporation, a Delaware corporation in which
Employee is a stockholder ("Xxxxxxx"), and the Xxxxxxx Securityholders named as
such therein, have entered into a Stock Purchase Agreement, dated as of November
29, 1999 (the "Stock Purchase Agreement"), pursuant to which the Company will
purchase all of the outstanding capital stock of Xxxxxxx.
C. It is a condition precedent to the obligations of the Company under
the Stock Purchase Agreement that Employee enter into a Non-Competition
Agreement in the form of this Agreement with the Company, including the covenant
not to compete contained herein, and Employee understands and acknowledges that
this Agreement is a material inducement to the Company upon which it is relying
in consummating the transactions contemplated by the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, warranties and
representations contained herein, the parties hereby agree as follows:
1. Employee covenants that during Employee's employment with the
Company, and through December 31, 2001, Employee shall not directly, or
indirectly through one or more other persons or entities, engage in, or have any
financial or other interests (whether as a principal, partner, shareholder,
director, officer, agent, employee, consultant or otherwise) in or provide
assistance to any person, firm, corporation or business that engages in, any
activity which is the same as or directly competes with, any activity now
engaged in by TriZetto that comprises a part of the Business, in, from, at or
into any of the states of the United States of America or the District of
Columbia. Notwithstanding the foregoing, nothing contained in this Agreement
shall prevent or otherwise limit Employee from holding, for investment purposes
only, no more than two percent (2%) of any class of equity securities of a
company engaged in activities that are competitive with the Business if such
class of equity securities is traded on a national securities exchange or on the
NASDAQ National Market System.
2. Employee agrees not to solicit or engage any of the employees of
TriZetto at any time during Employee's employment with the Company, and for a
period of two (2) years following the termination thereof; provided, that
nothing herein shall restrict or preclude the right of Employee or any future
employer of Employee to make generalized searches for employees by use of
advertisements in the media (including without limitation trade media) or by
engaging search firms
2
to engage in searches which are not targeted or focused on the employees of the
Company or engaging employees as a consequence thereof.
3. Employee covenants that neither Employee, nor any affiliate of
Employee, shall use for his, her or their benefit, or disclose, communicate or
divulge to, or use for the direct or indirect benefit of any person, firm,
association or company, other than TriZetto, any confidential information
regarding the business methods, business policies, procedures, techniques, trade
secrets, software, products, customer lists or other knowledge or processes used
or developed, prior to the Closing Date, by TriZetto, or other information
concerning the Business of which TriZetto or Employee became aware prior to the
Closing Date (collectively, the "Confidential Information"). The foregoing
restrictions shall not apply to: (a) information which is or becomes, other than
as a result of a breach of this Agreement, generally available to the public;
(b) information that was available to Employee on a non-confidential basis prior
to receipt from the Company or is received thereafter from a third party without
restriction and without breach of this Agreement; (c) information that is
independently developed by Employee without use of, or reference to, the
Confidential Information; or (d) the disclosure of information required to be
disclosed pursuant to a subpoena or other legal process; provided that the party
required to disclose such information shall notify the Company, in writing, of
the receipt of any such subpoena or other legal process requiring such
disclosure as soon as reasonably practicable after receipt thereof, as permitted
by applicable law, and the Company shall have a reasonable opportunity to quash
such subpoena or other legal process prior to any disclosure by Employee.
4. Employee acknowledges that the restrictions contained in Paragraphs 1
and 2, in view of the nature of the Business and the involvement of Employee in
the Business, are reasonable and necessary in order to protect the legitimate
interests of TriZetto, and that any violation thereof would result in
irreparable injuries to TriZetto. Therefore, Employee acknowledges and agrees
that, in the event of a violation by Employee of any of the restrictions
contained in Paragraphs 1 or 2 above, the Company shall be entitled to seek and
obtain from any court of competent jurisdiction (and without having to join any
other party in such action) temporary, preliminary and permanent injunctive
relief, in addition to any other rights or remedies to which it or they may be
entitled and Employee hereby consents to the issuance of such injunction or
grant of such specific performance. In any action or proceeding to enforce the
provisions of this Agreement, Employee expressly waives the defense that a
remedy of damages will be adequate for a breach of Employee's duties under this
Agreement.
5. It is expressly agreed by Employee that if in any judicial proceeding
the geographic coverage of the covenant contained in Paragraph 1 hereof or
either of the respective periods of time specified in Paragraphs 1 and 2 hereof
should be adjudged unreasonable, then such geographic coverage or such period or
periods of time, as the case may be, shall be reduced to the extent necessary to
enable the court to enforce the restrictions in Paragraph 1 and 2 to the fullest
extent permitted under applicable law.
6. The rights of the Company hereunder shall inure to, and the
obligations of Employee hereunder shall be binding on, their respective heirs,
representatives, successors and assigns.
7. In the event of a controversy, claim or dispute between any of the
parties hereto arising out of or relating to this Agreement, or the breach
thereof, the prevailing party shall be entitled to recover its reasonable
attorneys' fees, expenses and costs.
2
3
8. This Agreement shall be covered by and construed in accordance with
the laws of the State of California, without regard to its conflicts of law
rules. This Agreement may be executed by facsimile and in counterparts, each of
which shall be deemed an original and all of which when taken together shall
constitute on and the same instrument.
9. Neither this Agreement, nor any of the terms or conditions of this
Agreement, may be waived, amended or modified except by means of a written
instrument duly executed by the parties to be charged therewith. No waiver of
any provision, performance or default hereunder in any instance shall be
construed as a continuing waiver of such provision, performance or default or a
waiver of any other provision, performance or default or a waiver of any future
performance or default.
10. This Agreement, together with the provisions of the Stock Purchase
Agreement making reference hereto, contain all of the agreements of the parties
with respect to, and supersede all other agreements, written or oral, between
the parties relating to, the subject matter of this Agreement.
11. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them as set forth in the Stock Purchase Agreement.
3
4
THIS NON-COMPETITION AGREEMENT has been duly executed and delivered by
the parties hereto as of the date and year first above written.
"EMPLOYEE"
-------------------------------
Xxxxxxx X. Xxxxxxx
"COMPANY"
THE TRIZETTO GROUP, INC.,
a Delaware corporation
By:
---------------------------
Its:
---------------------------
