Deed of Non-Competition - Quintiles Transnational Corp. and David F. White
DEED OF NON-COMPETITION
BETWEEN
QUINTILES TRANSNATIONAL CORP.
AND
DAVID F. WHITE
29 NOVEMBER 1996
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INDEX
Clause Page
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1. Certain Definitions.............................................. 3
1.1 Certain Definitions................................. 3
2. Non-competition and Non-solicitation Covenants................... 3
2.1 General............................................. 3
2.2 Non-Competition..................................... 3
2.3 Holding of Shares or Securities..................... 5
2.4 Nondisclosure....................................... 5
2.5 Geographical Restriction............................ 5
2.6 Non-Competition Period.............................. 6
2.7 Remedies............................................ 6
2.8 Other Agreements.................................... 6
3. General Provisions............................................... 6
3.1 Notices............................................. 6
3.2 Variation........................................... 7
3.3 Entire Agreement.................................... 7
3.4 Assignment.......................................... 8
3.5 Law and Jurisdiction................................ 9
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THIS NON-COMPETE AGREEMENT dated 29 November 1996 is executed as a Deed and
is made
BETWEEN
(1) QUINTILES TRANSNATIONAL CORP., a corporation incorporated under the
laws of North Carolina, U.S.A. (the "Purchaser"); and
(2) DAVID F. WHITE, an individual residing at Little Barlows, Frieth,
Henley on Thames, Oxon, RG9 6PR (the "Vendor").
WHEREAS:
(A) Concurrently with the execution of this Agreement, the Purchaser, the
Vendor and others are consummating certain transactions under a Share
Exchange Agreement ("the Share Exchange Agreement") pursuant to which
the Vendor and other vendors are exchanging their shares of Innovex
Limited ("Innovex") for shares of Quintiles Transnational Corp.
(B) The Vendor is entering into this Agreement as a condition precedent to
completion under the Share Exchange Agreement.
(C) Upon completion of the share exchange pursuant to the Share Exchange
Agreement, Vendor will own approximately 39,904 shares of the
outstanding common stock of the Purchaser.
NOW THIS DEED WITNESSETH as follows:
1. CERTAIN DEFINITIONS
1.1 Certain Definitions. In this Agreement the following words and
expressions shall have the meanings respectively ascribed to them:
"Affiliates" shall mean: (i) the Purchaser; (ii) any Purchaser
subsidiary or related entity (including without limitation Innovex and
its subsidiaries); and (iii) any entity directly or indirectly
beneficially owned or controlled in whole or part by the Purchaser
or any Purchaser subsidiary or related entity, in each case as
existing at or prior to the date of termination of Vendor's
employment.
2. NON-COMPETITION AND NON-SOLICITATION COVENANTS
2.1 General. In consideration of the Purchaser agreeing to complete the
Share Exchange Agreement, during the Vendor's employment with the
Purchaser and the Non-Competition Period (as defined in Section 2.6):
2.2 Non-Competition. The Vendor shall not, either alone or jointly with
another or others, whether as principal, agent, director, shareholder,
independent contractor, officer, employee or in any other capacity,
whether directly or indirectly, and whether for his own benefit or
that of others:
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(a) be engaged or have an economic interest in any business which competes
with any business carried on or engaged in by the Purchaser or any of its
Affiliates at or before (provided such business has not been terminated or
abandoned by Purchaser or such Affiliate) the date of termination of Vendor's
employment, including without limitation Related Activities (as defined below)
(hereinafter, a "Competitive Business");
(b) solicit or endeavor to solicit on behalf of a Competitive
Business, from or with any person or entity:
(i) who or which was a customer of the Purchaser or any of its
Affiliates at any time during the period of twelve (12) months preceding the
date of the termination of the Vendor's employment;
(ii) who or which the Vendor or someone for whom he was directly
responsible solicited, negotiated, contracted, serviced, advised or had contact
with on the Purchaser's or any of its Affiliates' behalf; or
(iii) to whom the Purchaser or any of its Affiliates had made
proposals to do business at any time during the period of twelve (12) months
preceding the date of the termination of the employment;
(c) deal, do business or endeavor to deal or do business for a Competitive
Business from or with any person or entity:
(i) who or which was a customer of the Purchaser or any of its
Affiliates at any time during the twelve (12) months preceding the date of the
termination of the employment;
(ii) who or which the Vendor or someone for whom he was directly
responsible solicited, negotiated, contracted, serviced, advised or had contact
with on the Purchaser's or any of its Affiliates' behalf; or
(iii) to whom the Purchaser or any of its Affiliates had made
proposals to do business at any time during the period of twelve (12) months
preceding the date of the termination of the employment;
(d) without the written permission of the Board of the Purchaser (such
permission not to be unreasonably withheld or delayed and in particular such
permission will not be withheld if the Purchaser considers that the Vendor has
neither a personal influence with clients nor is in possession of confidential
information) offer employment to or otherwise solicit for employment the
services of any individual who was an employee or director of the Purchaser or
any of its Affiliates during the period of twelve (12) months preceding the
date of termination of employment whether or not such persons would commit any
breach of his contract of employment with the Purchaser or any of its
Affiliates by reason of his leaving service; or
(e) directly or indirectly take any action which is intended to be
materially detrimental or otherwise intended to be adverse to the Purchaser's
and/or any of its Affiliates'
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goodwill, name, business relations, prospects and operations.
Notwithstanding anything in this Agreement to the contrary, the following
activities will not be deemed to contravene the provisions of this
Agreement:
(i) Owning, operating, controlling or serving as a director,
officer or employee of or consultant to any company the principal business
of which is manufacturing, distributing, marketing and/or selling
pharmaceutical products the rights to which are owned by or licensed to
such company; provided that the amount of the consolidated revenues of such
company in any year derived from operations (as defined below, "Related
Activities") involving providing, on a contract, for hire, or similar basis
(i) drug development services, (ii) pharmaceutical or clinical research
services, (iii) pharmaceutical sales or marketing services, (iv) health
information management services, and/or (v) any other activity which
constitutes a significant part of the business of the Purchaser (in the
case of subparagraph (v), at or before the date of termination of Vendor's
employment) will not exceed the greater of five percent (5%) of
consolidated revenues or five percent (5%) of consolidated expenses of such
company; provided further that Vendor shall have no direct involvement in
such Related Activities as a director, officer, employee, consultant or
otherwise; provided further, it is agreed that Related Activities are
intended to be limited to activities which are incidental to the operations
of a pharmaceutical business and are not, without limiting the foregoing,
any activities dedicated primarily to a Competitive Business or the purpose
of drug development, marketing, sales services, or health benefit analysis
of the products or potential products of third parties.
(ii) the provision of executive search consulting services so long
as such services are not provided to an entity engaged in Related
Activities; and
(iii) the provision of financial consulting services so long as such
services are not provided to an entity engaged in Related Activities.
2.3 Holding of Shares or Securities. Section 2.2 shall not prohibit the
holding (directly or through nominees or otherwise) of shares or other
securities of another company which are listed or traded on any recognized
stock exchange being a holding (which phrase shall include any interest in
any such holding) entitling the holder to no more than two and one half
percent (2.5%) of the voting power of such body corporate.
2.4 Nondisclosure. The Vendor shall not either before or after the
termination of his employment disclose to any person or persons any
confidential information in relation to the affairs of the Purchaser or any
of its Affiliates or any client or customer thereof which he has become
or may have become possessed whilst in the service of the Purchaser except
in the proper course of his duties as an officer, director or employee of
the Purchaser or as authorized by the Board or as ordered by a Court of
competent jurisdiction or pursuant to other governmental process.
2.5 Geographical Restriction. The restrictions set forth in Sections
2.2(a) apply to the following geographical areas: the United Kingdom, the
Federal Republic of Germany and the United States of America, including the
territories and possessions thereof.
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2.6 Non-Competition Period. As used in this Agreement "Non-Competition
Period" means the eighteen (18) month period following the termination of
Vendor's employment, (irrespective of the circumstances of such
termination, except that the final six months of any garden leave period
shall run concurrently with the first six months of the Non-Competition
Period), except that for purposes of the restrictions set forth in Sections
2.2(b) and 2.2(c) (regarding solicitation, etc.), "Non-Competition Period"
shall mean the twenty-four (24) month period following the termination of
Vendor's employment (irrespective of the circumstances of such termination).
2.7 Remedies. Vendor acknowledges and agrees that Vendor's failure to
abide by the provisions of this Agreement would cause irreparable harm to
the Purchaser and/or its Affiliates for which legal remedies would be
inadequate. Therefore, in addition to any legal or other relief to which
the Purchaser and/or its Affiliates may be entitled by virtue of
Vendor's failure to abide by these provisions: (i) the Purchaser may seek
legal and equitable relief, including but not limited to preliminary and
permanent injunctive relief, for Vendor's actual or threatened failure to
abide by these provisions; (ii) Vendor will, upon final judicial
determination that Vendor has breached the terms of this Agreement,
indemnify the Purchaser and/or its Affiliates for all expenses (including
legal fees) in seeking to enforce these provisions; and (iii) if, as a
result of Vendor's failure to abide by the provisions, any commission or
fee becomes payable to Vendor or to any person, corporation or other entity
with which Vendor has become employed or otherwise associated, Vendor shall
pay the Purchaser or cause the person, corporation or other entity with
whom he has become employed or otherwise associated to pay the Purchaser an
amount equal to such commission or fee.
2.8 Other Agreements. Nothing in this Agreement shall terminate, revoke
or diminish Vendor's obligations or the Purchaser's and/or its Affiliates'
rights and remedies under law or under Vendor's existing service agreement
and the Share Exchange Agreement relating to trade secrets, confidential
information, non-competition and intellectual property.
3. GENERAL PROVISIONS
3.1 Notices. All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any
other party pursuant to this Agreement shall be in writing and shall be
hand delivered, sent by overnight courier or mailed by first-class
registered post, postage prepaid, return receipt requested or transmitted
by telegram, telecopy or telex, addressed as follows:
(a) If to the Purchaser:
Quintiles Transnational Corp.
4709 Creekstone Drive
Riverbirch Building, Suite 300
Durham, North Carolina
U.S.A. 27703
Attention: Gregory D. Porter
Fax: 919-941-2090
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with a copy which shall not constitute notice to:
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan L.L.P
2500 First Union Capital Center
Raleigh, North Carolina
U.S.A. 27601
Attention: Gerald F. Roach
Fax: 919-821-6800
(b) If to the Vendor:
David F. White
Little Barlows, Frieth
Henley on Thames
Oxon, RG9 6PR
With a copy which shall not constitute notice to:
Attention:
Fax:
Each party may designate by notice in writing a new address to which
any notice, demand, request or communication may thereafter be so given,
served or sent. Each notice, demand, request, or communication which
shall be hand delivered, sent, mailed, telecopied or telexed in the
manner described above, or which shall be delivered to a telegraph
company, shall be deemed sufficiently given, served, sent, received or
delivered for all purposes at such time as it is delivered to the
addressee (with the return receipt, the delivery receipt, or (with
respect to a telecopy or telex) the answerback being deemed conclusive,
but not exclusive, evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
3.2 Variation. No variation of this Agreement shall be valid or effective
unless made by one or more instruments in writing signed by all of the
parties hereto.
3.3 Entire Agreement. Except as expressly provided in this Agreement, this
Agreement: (i) supersedes and cancels all other understandings and
agreements, oral or written, with respect to Vendor's obligations with
respect to non-competition which Vendor has
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executed in the past; (ii) supersedes all other understandings and
agreements, oral or written, between the parties with respect to the
subject matter of this Agreement; and (iii) constitutes the sole
agreement between the parties with respect to the matters covered. No
change or modification of this Agreement shall be valid or binding
upon the parties unless such change or modification is in writing and is
signed by the parties.
3.4 Assignment. Neither of the parties hereto shall assign or otherwise
deal with any of its right, title or interest in this Agreement without
the prior written consent of the other party to this Agreement, which
consent may be withheld in such party's absolute discretion, provided,
however, that the Purchaser may in its absolute discretion assign all or
any of its right title and interest in this Agreement to a an Affiliate
or to a subsequent purchaser of all of the share capital of the Company
or all or substantially all of the assets of the Company.
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3.5 Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with English law and the parties irrevocably
submit to the non-exclusive jurisdiction of the High Court of Justice
in London for all purposes connected with it.
IN WITNESS whereof this Agreement has been executed and unconditionally
delivered as a Deed the day and year first-above written.
Signed and delivered as a Deed )
by Quintiles Transitional Corp. )
by its duly authorized )
Vice President, Rachel R. Selisker, )
and by its duly authorized )
Secretary, Gregory D. Porter )
/s/ Rachel R. Selisker
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Rachel R. Selisker
Vice President
/s/ Gregory D. Porter
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Gregory D. Porter
Secretary
Signed and delivered as a Deed )
by David F. White ) /s/ David F. White
in the presence of:
Name: P. Knott
----------------------------- )
Address: The Gables )
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Elvendon Road, Gorine-on- )
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Thames, Oxon RG8 ODT )
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Occupation: Director )
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