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NON-COMPETITION AGREEMENT
AGREEMENT ("Agreement"), dated November 2, 1998, between
XXXXXX-FIELD HEALTH PRODUCTS, INC., a Delaware corporation (the "Corporation"),
and XXXXXX X. XXXXXXX (the "Executive").
RECITALS
WHEREAS, the Executive and the Corporation have entered into a
certain employment agreement (the "Employment Agreement") and change in control
agreement (the "Change in Control Agreement") dated as of the date hereof;
WHEREAS, the Executive and the Corporation have entered into a
certain stock option agreement (the "Stock Option Agreement") dated as of the
date hereof;
WHEREAS, the Executive and the Corporation are parties to a
certain Non-Competition Agreement (the "Initial Non-Competition Agreement")
dated as of May 28, 1992;
WHEREAS, the parties desire to terminate the Initial Non-
Competition Agreement as of the date hereof;
WHEREAS, in consideration of the benefits to be derived by the
Executive pursuant to the terms and provisions of the Employment Agreement,
Change in Control Agreement and Stock Option Agreement, the Executive has agreed
to enter into this Agreement;
1. COVENANTS OF EXECUTIVE.
(a) The Executive expressly covenants and agrees that,
during the period commencing on the date hereof and ending on the two (2) year
anniversary of the Termination Date (as hereinafter defined), he will not
directly or indirectly, own, manage, operate, join, control or participate in or
be connected with as an officer, employee, consultant, partner, stockholder,
lender, or otherwise, any Competitor, as defined below, or any subsidiary or
affiliate thereof. For purposes hereof, a "Competitor" shall be deemed to mean
any business, individual, partnership, firm, corporation or organization (other
than a parent of the Corporation or a subsidiary or affiliate of such parent)
which at any time exports, imports, manufactures, markets, distributes, sells
and/or in any way other whatsoever deals with medical, surgical and/or health
care products or devices, or any matter, item or thing related thereto in any
domestic or foreign jurisdiction in which the Corporation or any subsidiary or
affiliate of the Corporation engages in such activities.
(b) Nothing in this Agreement is intended, or shall be
construed, to prevent the Executive during the term hereof or thereafter from
investing in the stock or other securities listed on a national securities
exchange or traded in the over-the-counter
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market of any corporation which is at the time a Competitor provided that the
Executive and members of his immediate family shall not, directly or indirectly,
hold, beneficially or otherwise, in the aggregate, more than five percent (5%)
of any issue of such stock or other securities of any one (1) such corporation.
(c) During the period commencing on the date hereof and
ending on the two (2) year anniversary of the Termination Date, the Executive
agrees that he will not, directly or indirectly, interfere with or solicit any
of the business or accounts of the Corporation or any of its subsidiaries or
affiliates which existed as of the Termination Date; and during the period
commencing on the date hereof and ending on the two (2) year anniversary of the
Termination Date, the Executive agrees that he will not, directly or indirectly,
solicit the employment of or hire any officer, consultant, or employee of the
Corporation or any of its subsidiaries or affiliates who was so employed on the
Termination Date. From and after the date hereof, the Executive agrees not to
disclose (unless compelled by judicial or administrative process) or use any
confidential or secret information relating to the Corporation or any of its
subsidiaries or affiliates or any of their respective clients, customers or
suppliers.
(d) It is expressly understood and agreed that the
covenants and agreements contained herein are necessary to induce the
Corporation to enter into the Employment Agreement, Change in Control Agreement
and Stock Option Agreement; and in the event of the breach by the Executive of
any of the terms and conditions of this Agreement on his part to be performed
hereunder, or in the event of the breach or threatened breach by the Executive
of the terms and provisions of subparagraphs (a), (b) or (c) of this Section 1,
then the Corporation shall be entitled, if it so elects, to institute and
prosecute any proceedings in any court of competent jurisdiction, either in law
or equity, for such relief as it deems appropriate, including, without limiting
the generality of the foregoing, any proceedings to obtain provable damages for
any breach of this Agreement, to enforce the specific performance thereof by the
Executive or to obtain an injunction against the commission, threatened
commission or continuance of any such breach or threatened breach without the
necessity of proving actual damages or that damages would be inadequate or of
posting a bond. In any such action, if the Corporation is successful, in whole
or in part, the Executive shall further, as an element of the Corporation's
damages, be liable for the reasonable attorney's fees and expenses of the
Corporation in the prosecution of such action or proceeding. If the Executive
violates the provisions of paragraphs (a), (b) or (c) of this Section 1, the
time period set forth therein shall be extended until after the date of entry of
final judgment enforcing such provision and the time allowed for appeal has
lapsed (the "Judgment Date") by a period equal to the time elapsed between the
commencement of the breach or threatened breach and the Judgment Date.
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(e) The Executive expressly acknowledges that the covenants
contained in this Section 1 shall not be deemed exclusive of any common law
rights of the Corporation in connection with any of the matters prohibited under
this Section 1, and that the Corporation shall have any and all rights as may be
provided by law in connection with the matters referred to in this Section 1.
(f) As used herein, "Termination Date" means the first date
as of which the Executive ceases to be engaged by the Corporation, or any of its
subsidiaries or affiliates, in any capacity whatsoever, whether as an employee,
consultant, independent contractor, agent or otherwise, and whether pursuant to
a formal or informal, oral or written, agreement, contract, understanding or
otherwise.
2. NOTICES.
Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered mail or
certified, (i) to 00 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 (or to such other
address as may be designated by the Executive from time to time) in the case of
the Executive or (ii) to its principal office in the case of the Corporation,
and shall be deemed given when deposited in the United States mails, postage
prepaid.
3. TERMINATION OF INITIAL NON-COMPETITION AGREEMENT. Effective
as of the date hereof, the Executive and the Corporation hereby agree that the
Initial Non-Competition Agreement shall be terminated in its entirety and shall
be of no further force and effect.
4. ENTIRE AGREEMENT.
This Agreement embodies the entire agreement of the parties
with respect to the subject matter hereof. It may not be changed except by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
5. WAIVERS.
The waiver by the Corporation of a breach of any provision
of this Agreement by the Executive shall not operate or be construed as a waiver
of any other or subsequent breach by the Executive.
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6. GOVERNING LAW.
This Agreement shall be subject to, and be governed by, the
laws of the State of New York without regard to its conflict of laws provisions.
7. BINDING EFFECT.
The rights and obligations of the Corporation under this
Agreement shall inure to the benefit of and shall be binding upon any successor
to the Corporation or to the business of the Corporation. Neither this Agreement
nor any rights or obligations of the Executive hereunder shall be transferable
or assignable by the Executive.
8. PROVISIONS OVERLY BROAD.
If any term or provision of this Agreement, or any part or
aspect thereof, shall be deemed by a court of competent jurisdiction to be
overly broad in scope, the court considering the same shall have the power and
hereby is authorized and directed to modify such term or provision to limit such
scope so that such term or provision is no linger overly broad and to enforce
the same as so limited. Subject to the foregoing sentence, in the event any
provision of this Agreement shall be held to be invalid or unenforceable for any
reason such invalidity or unenforceability shall attach only to such provision
and shall not affect or render invalid or unenforceable any other provision of
this Agreement. Subject further to the foregoing, if a court of any one or more
jurisdictions holds any term or provision of this Agreement, or any part or
aspect thereof, unenforceable by reason of the breadth of such scope or
otherwise, then such determination will not affect or render invalid or
unenforceable such term or provision in any other jurisdiction; such terms and
provisions as they relate to each such jurisdiction being, for this purpose,
severable into diverse and independent covenants.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXX-FIELD HEALTH PRODUCTS, INC. EXECUTIVE
By: /s/ Xxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
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