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EXHIBIT 10-U(ii)
NONCOMPETE AGREEMENT
THIS NONCOMPETE AGREEMENT (the "Agreement") is entered into
this 1st day of March, 1999, by and between Priority Healthcare Corporation, an
Indiana corporation, (the "Company") and Xxxxxx X. Xxxxxxxx (the "Employee").
AGREEMENT
1. Employment. The parties hereto acknowledge that the
terms of the employment of the Employee by the Company are governed by an
Employment Agreement dated as of the date hereof, (the "Employment Agreement"),
by and between the Employee and the Company.
2. Restrictive Covenants. In consideration of the mutual
promises contained herein and in the Employment Agreement, Employee agrees and
promises that for a period of one year after termination of employment with the
Company for any reason other than termination by the Company without cause, in
which event the period shall be six months, employee will not, directly or
indirectly, for Employee or any other person, firm, corporation, entity or
business:
(a) Compete with Company. Own, manage, operate, control
or otherwise be in any manner affiliated or connected
with, or engage or participate in the ownership,
management, operation or control of (as principal,
agent, proprietor, partner, member, shareholder,
director, trustee, officer, administrator, employee,
consultant, independent contractor, or otherwise),
any business or entity which as one of its business
activities competes directly or indirectly with the
Company within any county in which the Company does
business; or attempt to sell, offer or provide to any
person or entity which is a customer of the Company a
product or service substantially similar to products
or services offered by the Company.
(b) Solicit Customers. Divert or take away or attempt to
divert or take away, call on or solicit or attempt to
call on or solicit any customers, potential
customers, or prospects to which goods were sold or
services were rendered by Employee while he was an
employee of the Company.
(c) Employees. Induce or influence or attempt to induce
or influence, any person who is engaged as an
employee, agent, independent contractor or otherwise
by the Company to terminate his or her employment or
engagement.
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3. Severability. The parties hereto intend that the
covenants contained in paragraph 2 shall be construed as a series of separate
covenants, one for each county in which the Company has customers. Except for
geographic coverage, each such separate covenant shall be deemed identical in
terms to the covenants contained in paragraph 2. If, in any judicial proceeding,
a court shall refuse to enforce any of the separate covenants deemed included in
this paragraph, then this unenforceable covenant shall be deemed eliminated from
these provisions for the purpose of those proceedings to the extent necessary to
permit the remaining separate covenants to be enforced.
4. Proprietary and Confidential Information. The parties
hereto acknowledge and agree that proprietary and confidential information means
information or material which is not generally available to or used by others
outside the Company or the utility or value of which is not generally known or
recognized as standard practice, whether or not the underlying details are in
the public domain. Information and material which is considered proprietary and
confidential by the Company includes, but is not limited to, the following:
(a) Information and material which relates to the
Company's purchasing, accounting, merchandising or
marketing methods;
(b) Information and material related to business plans
and methods of operations or methods of doing
business or relating to marketing plans developed or
to be developed by the Company;
(c) Customer lists, potential customers lists, prospect
lists, account lists, billing information, salesmen
reports, territory reports, pricing lists, quotation
forms, advertising or marketing materials and
techniques and lead lists;
(d) Any of the information of the type described above
which the Company obtained from another source and
which the Company treats as proprietary or designates
as confidential, whether or not owned or developed by
the Company.
5. Use of Information. Employee acknowledges and agrees
that he is in a fiduciary relationship with the Company and as a consequence of
this fiduciary relationship and the trust and confidence reposed in the Employee
by the Company, Employee will receive proprietary and confidential information
and/or trade secrets of the Company, as previously defined in this Agreement. In
partial consideration for the mutual promises contained herein, the Employee
agrees not to directly or indirectly divulge, publish, communicate, use to the
detriment of the Company, use for the benefit of any person, firm, corporation,
or business or misuse in any way any such proprietary and confidential
information and/or trade secrets either during or subsequent to employment with
the Company, whether or not conceived, originated, discovered or developed in
whole or in part by Employee.
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6. Availability of Injunctive Relief. The parties acknowledge
that compliance with the covenants in paragraphs 2, 4, and 5 is necessary to
protect the business, goodwill and proprietary interests of the Company. The
parties further agree that the remedy at law for breach of any of the provisions
of such covenants is inadequate and that the Company shall be entitled, in
addition to other such remedies as it may have, to injunctive relief for any
breach or threatened breach of paragraphs 2, 4, and 5 without proof of any
actual damages that may have been or may be caused to the Company by such breach
or threatened breach.
7. Assignment. Neither this Agreement nor any right or
obligation created hereunder shall be assignable or delegated by Employee.
8. Entire Agreement. This Agreement and the Employment
Agreement dated the date hereof constitute the entire agreement between the
parties hereto pertaining to the subject matter hereof and supersede all prior
and contemporaneous agreements and understandings of the parties, and there are
no warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as specifically set forth
herein. No supplement, modification, waiver or termination of this Agreement
shall be binding unless executed in writing by the party to be bound thereby. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver or continuing waiver of any other provision hereof.
9. Partial Invalidity. In the event one or more of the
provisions contained in this Agreement, or any portion of any such provisions,
shall for any reason be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, or any portion of any such provision, but the
Agreement shall be construed as if such invalid, illegal or unenforceable
provision, or portion thereof, had never been contained herein.
10. Governing Law. This Agreement and all rights, obligations
and liabilities arising hereunder shall be construed and enforced in accordance
with the laws of the State of Indiana.
11. Titles and Headings. Titles and headings to provisions of
this Agreement are for the purpose of reference only and shall in no way limit,
define or otherwise affect the interpretation or construction of such
provisions.
12. Binding Agreement. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and shall be binding
on the successors and assigns of the Company.
13. No Third Parties. The provisions of this Agreement shall
not inure to the benefit of any third party who is not a signatory hereto except
as otherwise provided for in paragraph 12.
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IN WITNESS WHEREOF, the parties have hereto executed this
Agreement as of the day and year first written above.
PRIORITY HEALTHCARE CORPORATION
By: /s/ XXXXXX X. XXXXX
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The "Company"
/s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
"Employee"
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