NON-COMPETITION AGREEMENT
BETWEEN
MONARCH PROPERTIES, INC.
AND
XXXXXX X. XXXXXX
DATED AS OF JUNE ___, 1998
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "Agreement") is made as of the ____
day of June, 1998, between Monarch Properties, Inc., a Maryland corporation (the
"Company"), and Xxxxxx X. Xxxxxx, Chairman of the Board of Directors 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 director 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:
(a) Communicate with or solicit any Person who is or during such
period becomes a customer, supplier, employee, salesman, agent or
representative of the Company, in any manner which is intended to interfere
with such Person's relationship with the Company, or, which is intended to
obtain such Person as a customer, supplier, employee, salesman, agent or
representative of any business in competition with the Company within ten
(10) miles of any healthcare facility owned, leased or operated by the
Company;
(b) Establish, engage, own, manage, operate, join or control or
participate in the establishment, ownership (other than as the owner of
less than five percent (5%) 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 ten (10) miles of any healthcare facility owned,
leased or operated by 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
Integrated Health Services, Inc. shall not be limited in any way by this
Agreement; and, provided, further, that nothing in this Agreement shall require
Xxxxxx to terminate any investment or contractual relationship which did not
constitute a breach of this Agreement at the time that such investment or
relationship was first entered into by Xxxxxx.
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 (the "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.
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 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: Monarch Properties, Inc.
0000 Xxxxxxx Xxx Xxxxxxxxx - Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
Fax No.: 000-000-0000
If to Xxxxxx: c/o Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax No.: 000-000-0000
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 State of New York (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 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.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties have executed and delivered this Non-
Competition Agreement as of the date first above written.
MONARCH PROPERTIES, INC.
By:
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Name: Xxxx X. Xxxxx
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Title: President and Chief Executive Officer
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Xxxxxx X. Xxxxxx
