More on the SRCM Lawsuit Loss....
The clause that assigned SRCM the responsibility of attaining assignment of the customer contracts - noted in my last post, is found in this post researched and delivered by the skilled hands of Wall Street on YHOO...
post.messages.yahoo.com@m2.yahoo.com
This is my favorite part....
Buyer <that would be the SRCM Buffoons> hereby acknowledges that the public announcement or other disclosure of the transactions contemplated by this Agreement may cause certain suppliers or customers of the VNN Business to elect, prior to the Closing Date, to cancel, terminate, not renew, request modification of or alter payment patterns with respect to certain Seller Agreements to which they are party,
<here's the good part - drum roll please>
and Buyer hereby acknowledges and agrees that any and all such cancellations, terminations, nonrenewals, requests or alterations shall not in any way relieve Buyer <SRCM Buffoons> of its obligation to close the acquisition of the Purchased Assets and perform its obligations hereunder nor shall the existence or occurrence of any such cancellation, termination, nonrenewal, request or alteration (or notice or threat to cancel, terminate, not renew, request or alter) and any result or effect on Seller, Buyer, the Purchased Assets or the VNN Business resulting therefrom constitute or be deemed to constitute in any respect (i) a material adverse effect on, or change in, the VNN Business, (ii) a breach by Seller of any of its representations and warranties contained in Article V hereof or otherwise or (iii) a breach by Seller of any of its covenants and obligations under Article VII hereof or otherwise and that, in any event, all such loss or risk of any such cancellation, termination, nonrenewal, request or alteration shall be assumed by Buyer; provided, however, this Section 8.5 shall not relieve Seller of its obligation under Section 7.3 to use commercially reasonable efforts to preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the VNN Business; provided, further, that under no circumstances shall commercially reasonable efforts require Seller to make any payment, special concession or other contractual modification with respect to the aforementioned.
Now, keep in mind this contract was between SELLER (Brite & VNN) and BUYER (SRCM).
SRCM sued ex Brite employees - based on a non-compete SRCM thought should have been assigned to them via SRCM's purchase of Brite & VNN assets.
The judge ruled the non-compete was not binding between SRCM and the ex Brite employee who started IMS (and ended up taking all of the SRCM customers).
Without a non-compete, SRCM cannot sue the ex-employee for failing to make "reasonable efforts to preserve the goodwill" of the customers. Heck that contract was between SRCM, Brite & VNN - not the ex Brite employee.
Heck, the ex Brite employee who started IMS (and now services SRCM's
ex-customers) has no obligation to SRCM.... As I said in my last post - the judge gave SRCM one last chance to amend before throwing the whole case out. SRCM must prove the ex-Brite employee interferred with SRCM's contracts in a way that was breech of an obligation by IMS. Well that can not be done - there was no way for IMS to breech any obligation (because their is/was no obligation), other than if IMS had violated a non-compete (which the judge just said IMS did not do)...
Perhaps now you can see why I say SRCM has NO CASE. I think you also can see why SRCM is groveling and begging to get IMS and others to settle the suit instead of continuing their counter suit vs SRCM. SRCM has essentially lost. And SRCM is gonna end up paying big to get these pissed off fellas off their back.
The SRCM buffoons strike again. What a comedy team.
All Comments IMO
Cheers Steve |
