1
EXHIBIT 10-S(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 Xxx X. Xxxxxx (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.
2
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.
2
3
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.
3
4
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
--------------------------------------
The "Company"
/s/ XXX X. XXXXXX
--------------------------------------
Xxx X. Xxxxxx
"Employee"
4
