FORM OF NON-COMPETITION AGREEMENT
AGREEMENT made this ___ day of _________________, 1998, between
ElderTrust, a Maryland real estate investment trust (the "Company"), and Xxxxxxx
X. Xxxxxx, Chairman of the Board of Trustees of the Company ("Xxxxxx").
WHEREAS, the Company and Xxxxxx are interested in entering into
this Agreement governing, non-competition;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements of the parties contained herein and other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
Section 1. Non-competition. During the period during which
Xxxxxx serves as a trustee of the Company, Xxxxxx shall not, except with the
Company's express prior written consent, directly or indirectly, in any
capacity, for the benefit of any Person:
(1) communicate with or solicit any Person
who is or during such period becomes a customer, supplier,
employee, salesman, agent or representative of Company, in any
manner which interferes or might interfere with such Person's
relationship with the Company, or, in an effort to obtain such
Person as a customer, supplier, employee, salesman, agent or
representative of any business in competition with the Company
within 10 miles of any office or facility owned, leased or
operated by the Company;
(2) Establish, engage, own, manage, operate,
join or control or participate in the establishment, ownership
(other than as the owner of less than 1% of the stock of a
corporation whose shares are publicly traded), management,
operation or control of, or be a director, trustee, officer,
employee, salesman, agent or representative of, or be a
consultant to, any Person in any business in competition with
the Company, at any location within 10 miles of any office or
facility owned, leased or operated by Company, or act or
conduct himself in any manner which he would have reason to
believe inimical or contrary to the best interests of the
Company;
provided, however, that any activity engaged in by Xxxxxx as an officer,
director or employee of, or any interest of Xxxxxx as a stockholder in, Genesis
Health Ventures, Inc. shall not be limited in any way by this Agreement; and
provided further that, notwithstanding the foregoing provisions, Xxxxxx shall be
entitled to retain his position on the Board of Trustees of Universal Health
Realty Income Trust and to develop office and similar development projects not
related to the healthcare business.
For purposes of this Agreement, the term "Person" means a
natural person, corporation, limited liability company, partnership, trust,
estate, joint venture, sole proprietorship, government (and any branch or
subdivision thereof), governmental agency, association, cooperative or other
entity.
Section 2. Enforcement. Xxxxxx acknowledges that any breach by
him of any of the covenants and agreements of this Agreement ("Covenants") will
result in irreparable injury to the Company for which money damages could not
adequately compensate the Company, and therefore, in the event of any such
breach, the Company shall be entitled, in addition to all other rights and
remedies which the Company may have at law or in equity, to have an injunction
issued by any competent court enjoining and restraining Xxxxxx and/or all other
Persons involved therein from continuing such breach. The existence of any claim
or cause of action which Xxxxxx or any such other Person may have against the
Company shall not constitute a defense or bar to the enforcement of any of the
Covenants. If the Company is obliged to resort to litigation to enforce any of
the Covenants which has a fixed term, then such term shall be extended for a
period of time equal to the period during which a material breach of such
Covenant was occurring, beginning on the date of a final court order (without
further right of appeal) holding that such a material breach occurred or, if
later, the last day of the original fixed term of such Covenant.
Section 3. Consideration. Xxxxxx expressly acknowledges that
the Covenants are a material part of the consideration bargained for by the
Company.
Section 4. Scope. If any portion of any Covenant or its
application is construed to be invalid, illegal, or unenforceable, then the
other portions and their application shall not be affected thereby and shall be
enforceable without regard thereto. If any of the Covenants is determined to be
unenforceable because of its scope, duration, geographical area or similar
factor, then the court making such determination shall have the power to reduce
or limit such scope, duration, area or other factor, and such Covenant shall
then be enforceable in its reduced or limited form.
Section 5. Assignment. The rights and obligations of the
Company under this Agreement shall be binding upon its successors and assigns
and may be assigned by the Company to the successors in interest of the Company.
The rights
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and obligations of Xxxxxx under this Agreement shall be binding upon his heirs,
legatees, personal representatives, executors or administrators.
Section 6. Notice. For purposes of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when hand delivered, sent by overnight
courier, or mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid, or transmitted by telegram, telecopy, or telex,
addressed as follows:
if to the Company:
ElderTrust
000 XxXxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Telecopy No.: (000) 000-0000; and
if to Xxxxxx: at the address specified under Xxxxxx'x
signature below; or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
Section 7. Headings. Section headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
Section 8. Severability. If any part of any provision of this
Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provision or the
remaining provisions of this Agreement.
Section 9. Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania (without reference to the choice of law rules
thereof).
Section 10. Amendment; Modification; Waiver. No amendment,
modification or waiver of the terms of this Agreement shall be valid unless made
in writing and duly executed by Xxxxxx and the Company. No delay or failure at
any time on the part of the Company in exercising any right, power or privilege
under this Agreement, or in enforcing any provision of this Agreement, shall
impair any such right, power, or privilege, or be construed as a waiver of any
default or as any acquiescence therein, or shall affect the right of the Company
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thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
Section 11. Gender and Number. Throughout this Agreement, the
masculine and neuter genders shall be deemed to include all genders, and the
singular, the plural and vice versa, except where such construction would be
unreasonable.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement on , 1998 to be ________ effective as of ________ __, 1998.
ELDERTRUST
By:__________________________________________
Xxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
_____________________________________________
Xxxxxxx X. Xxxxxx
c/o Genesis Health Ventures, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Telecopy Number: (000) 000-0000
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