NON-SOLICITATION AGREEMENT
Exhibit 99.4
THIS NON-SOLICITATION AGREEMENT (this “Agreement”) is made and effective as of August 29, 2003 by and among RevCare, Inc., a Nevada corporation (the “RevCare”), and Orange County Professional Services, Inc., a California corporation (“OCPS”), on the one hand, and Hospital Employee Labor Pool, a California corporation (“HELP”), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual (the “Mohrmanns”), on the other hand, with reference to the following facts:
A. Concurrently herewith, RevCare, OCPS and HELP entered into that certain Exchange Agreement (the “Exchange Agreement”) pursuant to which, among other things, the administrative and back office temporary staffing business owned and operated by OCPS (the “Business”) was transferred to HELP. Terms with initial letters capitalized and not otherwise defined herein shall have their respective meanings as set forth in the Exchange Agreement.
B. As an essential component of the consideration flowing under the Exchange Agreement, HELP and the Mohrmanns are required to grant a covenant not to solicit in favor of RevCare and OCPS.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises contained herein and in the Exchange Agreement, the parties hereto agree as follows:
1. Grant of Covenant. For purposes of this Agreement, “Protected Businesses” shall mean any business which in the good faith determination of RevCare engages in the businesses engaged in by RevCare or its subsidiaries, as well as the normal evolutions thereof consistent with developments such business, but specifically excluding the Business. HELP and the Mohrmanns shall not, jointly or individually, whether for their own account or on account of others, directly or indirectly, whether or not for compensation (as proprietor, partner, stockholder (except that a less than one percent (1%) passive ownership interest in a public corporation shall be permitted), officer, director, agent, employee, consultant, trustee, affiliate or otherwise):
1.1 Solicit or divert, or attempt to call on, solicit or divert, any customer of RevCare or OCPS or their subsidiaries whom any of them became acquainted during their involvement with the Protected Businesses for the purposes of providing services which are competitive with the Protected Businesses, either for themselves or for any other person, firm or corporation or in any way interfere with the relationship between RevCare, OCPS or their subsidiaries and any customer thereof, provided that nothing herein shall restrict HELP and the Mohrmanns from soliciting or hiring the employees of the Business; provided that nothing herein shall restrict HELP or the Mohrmanns from soliciting customers of RevCare or OCPS for services provided by the Business; or
1.2 Induce or attempt to induce any person who is an employee, agent or consultant of the Protected Businesses, RevCare, OCPS or their subsidiaries to leave the employ of the Protected Businesses, RevCare, OCPS or their subsidiaries or in any way interfere with the relationship between RevCare, OCPS or their subsidiaries and any employee thereof.
2. Scope of Covenant. The covenant granted in Section 1 shall remain in effect for a period of two (2) years from the date hereof (the “Covenant Term”). HELP and the Mohrmanns
agree that the restrictions contained herein are reasonable and that they have had an opportunity to review the provisions of this Agreement with their respective counsel. The covenant shall terminate (i) upon the expiration of the Covenant Term; (ii) if and to the extent that the Protected Businesses shall be abandoned without sale or transfer to a successor or assign; or (iii) upon the mutual written agreement of HELP, the Mohrmanns, RevCare and OCPS.
3. Remedies. HELP and the Mohrmanns (i) acknowledge that this Agreement is an integral part of, and a condition to the obligations of RevCare and OCPS under, the Exchange Agreement, (ii) acknowledge that a breach of the covenant contained herein will result in irreparable and continuing damage to RevCare and OCPS and the Protected Businesses for which there will be no adequate remedy at law, and (iii) agree that in the event of any breach of the covenant, RevCare and OCPS and their successors and assigns shall be entitled to injunctive relief, in addition to any other and further relief as may be proper.
4. Severability. Should any one or more of the provisions of this Agreement be determined to be unlawful or unenforceable in any relevant jurisdiction, then such unlawful or unenforceable provision shall be modified by the proper court, if possible, but only to the extent necessary to make such provision enforceable, and such modified provision and all other provisions of this Agreement and of each other agreement entered into pursuant to this Agreement shall be given effect separately from the provision or portion thereof determined to be unlawful or unenforceable and shall not be affected thereby; provided, that any such modification shall apply only with respect to the operation of this Agreement in the particular jurisdiction in which such determination of unlawfulness or unenforceability is made.
5. Modification. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise amended, in whole or in part, except by an instrument in writing signed by the parties hereto.
6. Successors and Assigns. The benefits of this Agreement running to RevCare and OCPS may be assigned without the consent of HELP and the Mohrmanns by RevCare and OCPS in their sole discretion only to a lender, financing source, parent, subsidiary, or affiliate of RevCare or OCPS, or to any transferee of substantially all of their business, as such business may have evolved as of the date of such transfer and in such event shall be fully binding on and enforceable against HELP, the Mohrmanns and such successor(s) and assign(s).
7. Entire Agreement. This Agreement, the Exchange Agreement and the exhibits and schedules attached to the Exchange Agreement represent the entire agreement of the parties relating to the subject matter hereof and thereof. All prior or contemporaneous agreements, understandings, representations and statements, either oral or written, are merged herein and therein.
8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
2
IN WITNESS WHEREOF, the parties have executed this Non-Solicitation Agreement as of the date first above written.
|
REVCARE, INC., |
||
|
a Nevada corporation |
||
|
|
|
|
|
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
Name: |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
Title: |
President |
|
|
|
||
|
|
||
|
ORANGE COUNTY PROFESSIONAL SERVICES, INC., |
||
|
a California corporation |
||
|
|
||
|
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
Name: |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
Title: |
President |
|
|
|
||
|
|
||
|
HOSPITAL EMPLOYEE LABOR POOL, |
||
|
a California corporation |
||
|
|
||
|
By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
|
|
Name: |
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
|
|
Title: |
President |
|
|
|
||
|
|
||
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
|
|
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
||
|
|
|
|
|
|
|
|
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
|
|
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
||
3