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NONCOMPETITION AND NONSOLICITATION AGREEMENT
THIS NONCOMPETITION AND NONSOLICITATION AGREEMENT ("Agreement") entered
into this 11th day of September, 1998, by and between MEDICAL TECHNOLOGY
LABORATORIES, INC., a Florida corporation (the "Company") and Xxxxx X. XxXxxxx,
Xx. (the "Executive").
BACKGROUND
Simultaneously with the execution of this Agreement, the Company is
acquiring certain assets of Community Clinical Laboratories, Inc. (the "Seller")
pursuant to the Asset Acquisition Agreement between the Company and the Seller,
dated August 4, 1998 (the "Acquisition Agreement"). The Executive is the owner,
directly or indirectly, of the common stock of the Seller, has an interest in
the business of the Seller and is an employee of the Seller. In connection with
the purchase of the Seller's assets and in accordance with the Acquisition
Agreement, the Company wishes to obtain assurances that the Executive's ability
to compete with it is restricted. The Executive acknowledges that the
restrictive covenants contained in this Agreement are reasonably necessary to
protect the Company's business, trade secrets and its relationships with its
customers. The Executive is willing to accept such restrictions on the terms and
conditions set forth herein. Accordingly, in consideration of the mutual
covenants and agreements set forth below, the parties agree as follows:
TERMS
1. Competitive Business.
The Executive agrees that, as of the date of this Agreement and continuing
for a period of 36 months thereafter, in the following Florida counties:
Pinellas, Hillsborough, Pasco, Manatee, Sarasota, Charlotte, Polk, Lee,
Hernando, Citrus, Lake, Orange, DeSoto, Hardee, Osceola, Seminole, Brevard,
Marion, Collier, Alachua and Volusia, the Executive shall not, directly or
indirectly or on behalf of himself or any other person or entity: (a) hire, or
attempt to hire, any employee of the Company or person on assignment from the
Company or otherwise encourage any employee of the Company or person on
assignment to leave employment or terminate an assignment with the Company; (b)
accept, perform, or supervise the full or partial duties of any position in any
company or entity that is in competition with the Company; or (c) in any manner
or at any time, encourage any person, firm, corporation, or any business entity
that is a customer of the Company to cease doing business with the Company.
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2. Confidentiality; Disclosure; Proprietary Information.
The Executive recognizes and acknowledges that all records with respect to
customers currently served by the Seller and that will be served by the Company
following the execution of the Acquisition Agreement, or with respect to other
employees of the Seller or the Company and lists of customers of the Seller or
the Company and all personal, financial, and business information of the
customers are valuable, special and unique and proprietary assets of the Company
following the execution of the Acquisition Agreement. The Executive agrees that
he will not at any time, (i) disclose any list of customers or any personal,
financial, or business information about the customers, or any other records
pertaining to the customers, to any person, firm, corporation, association, or
other entity or (ii) utilize such information for any purpose competitive to the
Company.
3. Consideration.
In exchange for the covenants set forth in Sections 1 and 2, the Company
agrees to pay to the Executive an amount of cash equal to $1,000.00 payable
monthly for eight (8) months beginning September 15, 1998.
The Executive agrees that, if he is indicted, is convicted, pleads guilty
to, or is formally charged with a "healthcare crime," whether a misdemeanor or
felony, the Company may discontinue any and all payments to the Executive that
may be due under this Agreement. For purposes of this section, a "healthcare
crime" means any action that results in exclusion, whether voluntary or
involuntary, of the Executive from any federal or state healthcare program, or
otherwise would prohibit the Executive from being employed by or receive
payments from a company that participates in the Medicare or Medicaid program or
any other state or federal healthcare program.
4. Covenants Independent and Separable.
Each of the covenants set forth in Sections 1 and 2 of this Agreement are
independent of any other provision in this Agreement. The existence of any claim
or cause of action by the Executive against the Seller or the Company, whether
based on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of such covenants. If any part of Section 1 or 2 is
held to be invalid or unenforceable in any respect, the parties agree that such
part shall be modified to permit its enforcement to the maximum extent permitted
by applicable law, and the remaining parts shall be unaffected by any such
modification.
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5. Irreparable Injury.
The Executive agrees that a breach of any of the covenants set forth in
Sections 1 or 2 would result in irreparable injury and damage to the Company for
which the Company would have no adequate remedy at law. The Executive further
agrees that, in the event of such a breach, the Company shall be entitled to
immediate injunctive relief to prevent such violation or continued violation,
without having to prove damages, and the Company shall be entitled to recover
all costs and expenses, including reasonable attorneys' fees, incurred by the
Company in enforcing said covenants, in addition to any other remedies to which
the Company may be entitled at law or in equity.
6. Accounting.
The Executive covenants and agrees that, if he violates any of the
covenants or agreements set forth in Sections 1 or 2 of this Agreement, the
Company shall be entitled to an accounting and repayment of all profits,
compensation, commission, remuneration, or other benefits that the Executive has
realized, directly or indirectly, or may realize as a result of, growing out of,
or in connection with, any such violation. These remedies shall be in addition
to, and not in limitation of, any injunctive relief or other rights or remedies
to which the Company may be entitled at law, in equity, or under this Agreement.
7. Arbitration; Consent to Jurisdiction and Venue.
All controversies, claims, disputes, and matters in question arising out
of, or related to, this Agreement or the breach of this Agreement, or the
relations between the parties to this Agreement, shall be decided by arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The parties agree that the arbitration shall take place exclusively
in Clearwater, Florida, and shall be governed by the substantive law of Florida.
Any award rendered by the arbitrator shall be final, and final judgment may be
entered upon the parties in accordance with applicable law in any court having
jurisdiction, including a federal district court, pursuant to the Federal
Arbitration Act. The arbitrator may grant the Company injunctive relief,
including mandatory injunctive relief, to protect the rights of the Company, but
the arbitrator shall not be limited to such relief. This arbitration provision
shall not preclude the Company from seeking temporary or preliminary injunctive
relief in a court of law to protect its rights, nor shall the filing of such an
action constitute any waiver by the Company of its right to arbitrate. In
connection with the arbitration of any dispute between the parties to this
Agreement, each party may utilize all methods of discovery authorized by the
Federal and Florida Rules of Civil Procedure. The Executive consents to personal
jurisdiction and venue, for any action brought by the Company arising out of a
breach or threatened breach of this Agreement, in the United States District
Court for the Middle District of Florida, Tampa Division, or in the Circuit
Court in and for Pinellas County, Florida. The Executive agrees that any action
arising under this Agreement or out of the relationship established by this
Agreement shall be brought only and exclusively in the United States District
Court for the Middle District of Florida, Tampa Division, or in the Circuit
Court in and for Pinellas County, Florida.
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8. Acknowledgement.
The Executive acknowledges that the Executive will be able to earn a living
subject to the foregoing restrictions and that the Executive's recognition and
representation of this fact is a material condition to the execution of this
Agreement and to the Executive's continued employment with the Company.
9. Miscellaneous.
(a) Entire Agreement. This Agreement represents the entire agreement
between the Company and the Executive and supersedes all prior negotiations and
discussions by and among the parties in connection with this Agreement or its
subject matter.
(b) Amendments. No change, modification, or termination of any of the
terms, provisions, or conditions of this Agreement shall be effective unless
made in writing and signed by the parties to this Agreement.
(c) Waiver of Breach. The waiver by the Company of a breach or threatened
breach of any provision of this Agreement by the Executive shall not be
construed as a waiver of any of the Company's rights under this Agreement.
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Florida.
(e) Separability. If any provision of this Agreement is held invalid, the
remainder of this Agreement shall not be affected thereby. If any of the
provisions of this Agreement relating to the time period or areas of activity
restricted shall be declared by a court of competent jurisdiction to exceed the
maximum restrictiveness such court deems reasonable and enforceable, the time
period or areas of activity restricted and related aspects deemed reasonable and
enforceable by the court shall become the maximum restrictions, and the
restriction shall remain enforceable in such jurisdiction to the fullest extent
deemed reasonable by such court. Such court's determination shall not affect the
validity and enforceability of this Agreement in any other jurisdiction.
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(f) Headings. The titles or captions of sections contained in this
Agreement are provided for convenience of reference only, and they shall not be
considered a part of this Agreement.
(g) Continuance of Agreement. The rights, responsibilities and duties of
the Company and the Executive, and the covenants and agreements contained in
this Agreement, shall survive the execution of this Agreement, shall continue to
bind the parties to this Agreement shall continue in full force and effect until
each and every obligation of the parties pursuant to this Agreement shall have
been performed, and shall be binding upon and inure to the benefit of the
successors and assigns of the parties.
10. Notices.
All notices, requests, demands and other communications hereunder shall be
in writing, and shall be deemed to have been duly given if delivered by
overnight delivery service or hand delivered, addressed as follows:
If to the Company:
Medical Technology Laboratories, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx, President
With a copy to:
Holland & Knight LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to the Executive:
Xxxxx X. XxXxxxx, Xx.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first written above.
MEDICAL TECHNOLOGY LABORATORIES, INC.
By: ________________________________________
Name: Xxxx X. Xxxxxx
Title: President
EXECUTIVE:
By: ________________________________________
Name: Xxxxx X. XxXxxxx, Xx.
