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EXHIBIT 10.40
NON-COMPETE AGREEMENT
THIS NON-COMPETE AGREEMENT (this "Agreement") is entered into as of
August 16, 1996, between Xx. Xxxxxxx Xxxxxx Xxxxxxxxxx (the "Shareholder") and
Xxxxxxxxxx Healthcare Corp., a California corporation ("Xxxxxxxxxx").
WHEREAS, Xxxxxxxxxx, Champion Healthcare Corporation, a Delaware
corporation ("Champion"), and PC Merger Sub, Inc., a Delaware corporation
("Merger Sub"), have entered into an Agreement and Plan of Merger dated as of
April 12, 1996, as amended and restated as of May 29, 1996 (as so amended and
restated, the "Merger Agreement"), providing for, among other things, the
merger (the "Merger") of Merger Sub with and into Champion pursuant to the
terms and conditions of the Merger Agreement, and setting forth certain
representations, warranties, covenants and agreements of the parties thereto in
connection with the Merger; and
WHEREAS, upon consummation of the Merger, the Shareholder will
continue to Beneficially Own Voting Securities of Xxxxxxxxxx constituting a
majority of the Total Voting Power of Xxxxxxxxxx;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Certain Definitions. (a) For the purposes of this Agreement, capitalized
terms not otherwise defined herein shall have the meanings assigned to them in
the Shareholder Agreement (as defined in the Merger Agreement).
2. Representations of the Shareholder. As of the date hereof, the
Shareholder represents and warrants to Xxxxxxxxxx that:
(a) such Shareholder Beneficially Owns all of the outstanding
shares of common stock, no par value per share, of Xxxxxxxxxx ("Xxxxxxxxxx
Common Stock");
(b) such Shareholder does not Beneficially Own any shares of
common stock, par value $.01 per share, of Champion ("Champion Common Stock")
or any shares of Series C Preferred Stock or Series D Preferred Stock of
Champion (collectively, the "Champion Capital Stock");
(c) this Agreement has been duly executed and delivered by the
Shareholder and, assuming due execution by Xxxxxxxxxx, this Agreement is a
legal, valid and binding obligation, enforceable against the Shareholder in
accordance with its terms; and
(d) The execution, delivery and performance by the Shareholder of
this Agreement do not and will not contravene or conflict with any provision of
any law, regulation, judgment, injunction, order or decree binding upon the
Shareholder or any agreement, contract or other instrument to which the
Shareholder is a party, other than any such contraventions or conflicts that
would not prevent or materially delay the performance of the Shareholder's
obligations hereunder.
3. Representations of Xxxxxxxxxx. As of the date hereof, Xxxxxxxxxx
represents and warrants to the Shareholder that the execution, delivery and
performance of this Agreement by it has been
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duly and validly authorized by all necessary corporate action on its part and,
assuming due execution by the Shareholder, that this Agreement is a legal,
valid and binding obligation, enforceable against Xxxxxxxxxx in accordance with
its terms.
4. Non-Compete.
(a) Non-Competition. In consideration of the benefits of this
Agreement, the Shareholder Agreement and the Merger Agreement to the
Shareholder and in order to induce Xxxxxxxxxx to enter into this Agreement, the
Shareholder Agreement and the Merger Agreement and Champion to enter into the
Merger Agreement, the Shareholder hereby covenants and agrees that during the
period from the date of the Shareholder Agreement to the date of termination of
each and every provision of the Shareholder Agreement with respect to the
Shareholder and each and every Affiliate or Associate of the Shareholder or the
relinquishment of all rights relating to the nomination of, and resignation of,
all director nominees of the Shareholder and the Shareholder's Affiliates and
Associates (the "Term") neither the Shareholder nor any Affiliates of the
Shareholder shall, without the prior written consent of Xxxxxxxxxx, directly or
indirectly, compete with Xxxxxxxxxx or any of its Subsidiaries in the business
(which specifically does not include any ancillary hospital service businesses
related to such business, including, without limitation, dietary, maintenance,
security and other related service businesses) of owning, leasing or managing
hospitals and ambulatory care centers (the "Business") in the Restricted Area
(as defined below) or have any interest, directly or indirectly, in any entity
engaged in the Business in the Restricted Area. Nothing in this Section shall
prohibit the Shareholder from (i) owning, directly or indirectly, control of a
Person (the "Subject Company") if the Subject Company is not primarily engaged,
directly or indirectly, in the Business in the Restricted Area and, within
twelve months after such acquisition, the Shareholder causes the Subject
Company to divest any business or assets of the Subject Company that engage in
the Business in the Restricted Area or (ii) owning, directly or indirectly, not
more than 5% of any class of voting securities of a publicly traded Person that
is engaged, directly or indirectly, in the Business in the Restricted Area. The
Shareholder specifically agrees that this covenant is an integral part of the
inducement of Champion and Xxxxxxxxxx to consummate the transactions
contemplated by the Merger Agreement and that it shall be specifically
enforceable by Xxxxxxxxxx' successors and permitted assigns.
(b) Restricted Area. The covenants contained in Section 4(a) shall
be construed as a series of separate covenants, one for each county or state of
the United States of America (together, the "Restricted Area").
(c) Blue Penciling. If any provision contained in this Section shall
for any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, but this Section shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. Each of the
Shareholder and Xxxxxxxxxx agrees that in the event that either the length of
time or geographical area set forth in this Section is deemed too restrictive
by any court of competent jurisdiction, the covenants and agreements in this
Section shall be enforceable for such time and within such geographical area as
such court may deem reasonable under the circumstances.
(d) Non-Solicitation. The Shareholder hereby covenants and agrees
that following the Closing Date neither it nor any of its Affiliates shall,
without the prior written consent of Xxxxxxxxxx, directly or indirectly,
solicit for employment any current key employee or officer of Xxxxxxxxxx or any
of its Subsidiaries; provided, that the foregoing restriction shall not apply
to
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employees no longer employed by Xxxxxxxxxx or its Subsidiaries or to employees
who respond to general solicitations of employment not specifically directed
toward such key employees or officers of Xxxxxxxxxx or its Subsidiaries.
5. Additional Agreements. Neither the termination of this Agreement nor the
Transfer by the Shareholder of Beneficial Ownership of any Voting Securities of
Xxxxxxxxxx shall relieve the Shareholder of any liabilities or obligations to
Xxxxxxxxxx that arose or accrued under the terms of this Agreement prior to the
date of such termination or Transfer.
6. Specific Performance. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a party hereto
fails to comply with any of the obligations imposed by this Agreement, that
every such obligation is material and that, in the event of any such failure,
the other party will not have an adequate remedy at law or damages.
Accordingly, each party hereto agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or damages, is the appropriate remedy
for any such failure and will not oppose the granting of such relief on the
basis that the other party has an adequate remedy at law. Each party hereto
agrees that it shall not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with any other party's seeking or
obtaining such equitable relief.
7. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and shall not be assignable (by operation of law or otherwise) without the
written consent of all other parties hereto; provided, that in the event of a
merger where Xxxxxxxxxx is not the surviving corporation, (x) this Agreement
shall be assigned to and shall inure to the benefit of and be binding upon such
surviving corporation and (y) any reference herein to Xxxxxxxxxx shall be
deemed to be a reference to such surviving corporation; provided, further, that
in the event of a merger where Xxxxxxxxxx is the surviving corporation, this
Agreement shall continue in full force and effect.
8. Entire Agreement; Amendment; Waiver. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and contains the entire agreement among the parties with
respect to the subject matter hereof. This Agreement may not be amended,
supplemented or modified, and no provisions hereof may be modified or waived,
or any consents granted hereunder, except, with respect to Xxxxxxxxxx, by an
instrument in writing signed by Xxxxxxxxxx and approved by the unanimous vote
of all of the Independent Directors and, with respect to the Shareholder, by
the Shareholder. No waiver of any provisions hereof by any party shall be
deemed a waiver of any other provisions hereof by any such party, nor shall any
such waiver be deemed a continuing waiver of any provision hereof by such
party.
9. Miscellaneous.
(a) Governing Law and Venue. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH AND SUBJECT TO THE LAWS OF THE STATE OF TEXAS, WITHOUT
REFERENCE TO CONFLICTS OF LAWS PRINCIPLES. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Texas and the Federal
courts of the United States of America located in the State of Texas solely in
respect of the interpretation and enforcement of the provisions of this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it
is not subject thereto or that
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such action, suit or proceeding may not be brought or is not maintainable in
said courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and
the parties hereto irrevocably agree that all claims with respect to such
action or proceeding shall be heard and determined in such a Texas State or
Federal court. The parties hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of
such dispute and agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 9(b),
shall be valid and sufficient service thereof.
(b) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given (i) on
the first business day following the date received, if delivered personally or
by telecopy (with telephonic confirmation of receipt by the addressee), (ii) on
the business day following timely deposit with an overnight courier service, if
sent by overnight courier specifying next day delivery and (iii) on the first
business day that is at least five days following deposit in the mails, if sent
by first class mail, to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
If to the Shareholder, to:
Xx. Xxxxxxx Xxxxxx Xxxxxxxxxx
AM Natruper Xxxx 00
X-00000
Xxxxxxx Xxxxxxxx of Germany
Facsimile: (000) 00-000-000-0000
with copies to:
X.X. Messenger
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
and to:
Xx. Xxxxx zu Losebeck
Sozietat Xx. X. Xxxxxxx
Xxxxxxxxx 0
00000 Xxxxxxxxx, Xxxxxxx
Facsimile: (000) 00-000-000-0000
If to Xxxxxxxxxx, to:
Xxxxxxxxxx Healthcare Corporation
000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
Vice President and General Counsel
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with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Facsimile: (000) 000-0000
(c) 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 invalid or unenforceable, (i) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (ii) 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.
(d) Counterparts. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which shall together constitute the same
agreement.
(e) Termination. This Agreement shall terminate automatically
without any action by any party upon termination of each and every provision of
the Shareholder Agreement with respect to the Shareholder and each and every
Affiliate and Associate of the Shareholder or the relinquishment of all rights
relating to the nomination of, and the resignation of all director nominees of
the Shareholder and the Shareholder's Affiliates and Associates except as
otherwise agreed by the unanimous vote of all of the Independent Directors then
in office.
(f) Headings. All Section headings and the recitals herein are for
convenience of reference only and are not part of this Agreement, and no
construction or reference shall be derived therefrom.
(g) Other Agreements. The parties hereto agree that there is not and
has not been any other agreement, arrangement or understanding between the
parties hereto with respect to the matters set forth herein.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS OR
IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY (INCLUDING ANY HOLDER OF
VOTING SECURITIES OF XXXXXXXXXX) ANY RIGHTS OR REMEDIES OF ANY NATURE
WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT; PROVIDED, THAT THE FOREGOING
SHALL NOT IN ANY WAY RESTRICT OR LIMIT ANY HOLDER OF VOTING SECURITIES OF
XXXXXXXXXX FROM BRINGING A SHAREHOLDER DERIVATIVE ACTION TO SEEK OR COMPEL THE
DIRECTORS OF XXXXXXXXXX TO CAUSE XXXXXXXXXX TO ENFORCE ANY OBLIGATIONS OF THE
SHAREHOLDER HEREUNDER OR TO EXERCISE ANY RIGHTS OR REMEDIES OF XXXXXXXXXX
HEREUNDER.
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(i) No Waiver of Opportunities. Nothing in this Agreement shall
waive or shall be construed to waive the right of Xxxxxxxxxx or any of its
Subsidiaries to pursue a claim against any Person for loss of, or a failure to
present or provide to Xxxxxxxxxx or any Subsidiary of Xxxxxxxxxx, any present
or future corporate opportunities; provided, that the parties intend that the
foregoing provision shall not (A) affect in any manner the contractual
obligations under this Agreement or be deemed to impose any additional
obligations on any party except such obligations that may arise by operation of
law or (B) expand or limit the interpretation of any provisions hereof
including, without limitation, Section 4(a) and 4(d).
IN WITNESS WHEREOF, Xxxxxxxxxx and the Shareholder have executed and
delivered this Agreement, or a counterpart hereof, as of the date first written
above.
XXXXXXXXXX HEALTHCARE
By: \s\ Xxxxxx X. Messenger
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Name: X. X. Messenger
Title: President & Chief Executive Officer
THE SHAREHOLDER
By: \s\ Xx. Xxxxxxx X. Xxxxxxxxxx
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Name: Xx. Xxxxxxx Xxxxxx Xxxxxxxxxx
