NON-COMPETITION AGREEMENT
This Non-Competition Agreement (this "Agreement") is entered into as of
April 1, 2000 (the "Effective Date"), by Horizon Vision Centers, L.L.C., a
Delaware limited liability company ("Horizon"), for the benefit of Prime RVC,
Inc., a Delaware corporation ("Prime RVC") and each of Prime RVC's affiliates
(Prime RVC and all of its affiliates are referred to herein individually as a
"Beneficiary" and collectively as "Beneficiaries").
RECITALS:
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime RVC and certain equity holders of Horizon are consummating that
certain Limited Liability Company Agreement of Horizon, dated effective as of
April 1, 2000 (the "LLC Agreement").
WHEREAS, Horizon will receive material, valuable benefits as a result
of the consummation of the transactions contemplated by the LLC Agreement.
WHEREAS, the parties acknowledge and agree that Prime RVC would not
enter into the LLC Agreement unless Horizon entered into this Agreement.
WHEREAS, in order to induce Prime RVC to enter into the LLC Agreement,
Horizon has agreed to certain restrictions on the activities of Horizon and its
Affiliates (as hereinafter defined), which restrictions Horizon deems reasonable
and appropriate.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good, valuable and binding consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
AGREEMENTS:
1. Confidentiality Agreement. Horizon agrees that it has been and may
continue to be, through its relationship with Prime RVC, exposed to confidential
information and trade secrets pertaining to, or arising from, the business of
Prime RVC and/or each of Prime RVC's present or future affiliates (individually
and collectively, "Discloser"), that such information and trade secrets are
unique and valuable and that Discloser would suffer irreparable injury if this
information or trade secrets were divulged to those in competition with
Discloser. Therefore, Horizon agrees to keep in strict secrecy and confidence,
both during and after the period during which Prime RVC owns any interest in
Horizon, any and all information concerning Discloser which Horizon acquires, or
to which Horizon has access through its relationship with Discloser, that has
not been publicly disclosed by Discloser or that is not a matter of common
knowledge by Discloser's competitors (collectively, "Proprietary Information").
The Proprietary Information covered by this Agreement shall include, but shall
not be limited to, information relating to any inventions, processes, software,
formulae, plans, devices, compilations of information, technical data, mailing
lists, management strategies, business distribution methods, names of suppliers
(of both goods and services) and customers, names of employees and terms of
employment, arrangements entered into with suppliers and customers, including,
but not limited to, proposed expansion plans of Discloser, marketing and other
business and pricing strategies, and trade secrets of Discloser.
Except with prior written approval of Discloser, Horizon will not: (i)
directly or indirectly, disclose any Proprietary Information to any person
except authorized personnel of Discloser or (ii) use Proprietary Information in
any way. Within forty-eight (48) hours of the time at which Prime RVC's and its
affiliates' aggregate voting equity interests in Horizon constitute less than
fifty percent (50%) of the outstanding voting equity interests of Horizon,
whether the disposition resulting in such ownership is voluntary or involuntary,
Horizon will deliver to Prime RVC (without retaining copies thereof) all
documents, records or other memorializations including copies of documents and
any notes which Horizon has prepared, that contain Proprietary Information or
relate to Discloser's business, all other tangible Proprietary Information in
Horizon's possession or control, and all of Discloser's credit cards, keys,
equipment, vehicles, supplies and other materials that are in possession or
under Horizon's control.
2. Agreement by Horizon. Horizon hereby agrees that, until the fifth
(5th) anniversary of the date of this Agreement, Horizon will not directly or
indirectly, either through any kind of ownership (other than ownership of
securities of a publicly held corporation of which it owns less than five
percent (5%) of any class of outstanding securities), or as a principal,
shareholder, agent, employer, employee, advisor, consultant, co-partner or in
any individual or representative capacity whatever, either for its own benefit
or for the benefit of any other person, corporation or other entity, without the
prior written consent of Prime RVC, commit any of the following acts, which acts
shall be considered violations of this covenant not to compete:
(a) Except through Horizon, engage in or provide any services
that are provided by Horizon, directly or indirectly, anywhere within a
two hundred (200) mile radius of any center or facility at any time
operated by Horizon or any of Horizon's affiliates, including, without
limitation, any services related to, (i) the operating of laser
refractive surgical centers, (ii) the manufacture, maintenance,
refurbishing, repair, sale, or leasing of any equipment related to or
necessary for the operating of laser refractive surgical centers, or
(iii) providing any management services, training or consulting
services related to any of the activities described in (i) or (ii);
(b) Directly or indirectly request or advise any person, firm,
physician, corporation or other entity having a business relationship
with Prime RVC, or any affiliate or related entity of Prime RVC, to
withdraw, curtail, or cancel its business with Prime RVC or such
affiliate or related entity; or
(c) Directly or indirectly hire any employee of Prime RVC, or
any affiliate or related entity of Prime RVC, or induce or attempt to
influence any employee of Prime RVC or any such affiliate or related
entity to terminate his or her employment with Prime RVC or any such
affiliate or related entity.
3. Agreement. Horizon has reviewed and carefully considered the
provisions of this ARTICLE and, having done so, agrees that the restrictions
applicable to it as set forth herein (a) are fair and reasonable with respect to
time, geographic area and scope, (b) are not unduly burdensome to it, and (c)
are reasonably required for the protection of the interests of the other parties
hereto for whose benefit such restrictions were agreed upon.
4. Remedies. Horizon agrees that a violation on its part of any
applicable covenant contained in this Agreement will cause the other parties
hereto for whose benefit such restrictions were agreed upon irreparable damage
for which remedies at law may be insufficient, and for that reason, Horizon
agrees that the other parties shall be entitled as a matter of right to
equitable remedies, including specific performance and injunctive relief,
therefor. The right to specific performance and injunctive relief shall be
cumulative and in addition to whatever other remedies, at law or in equity, that
the other parties may have, including, specifically, recovery of additional
damages.
5. Affiliates. For purposes of this Agreement, an "Affiliate" of
Horizon means any corporation, partnership or other entity that, at the date
hereof or at any time during the term hereof, is controlled by, or under common
control with, Horizon. "Control" (and its derivatives), in this context, means
the possession of, directly or indirectly, the power to direct or cause the
direction of the management of the applicable corporation, partnership or other
entity either through the ownership of voting securities (or other equity
interests) or by contract.
6. Control of Affiliates' Actions. Horizon will timely exercise all of its
rights and powers to cause each of its Affiliates to comply with the terms of
this Agreement.
7. Indemnity. Horizon agrees to indemnify, defend and hold each Beneficiary
harmless from and against any and all loss, damage, cost and expense (including
attorneys' fees) that may result from any breach or threatened breach of this
Agreement by Horizon or any Affiliate of Horizon.
8. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by an
instrument in writing executed by Horizon and Prime RVC.
(b) Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(c) Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Texas, and not the conflicts
of law provisions thereof.
(d) Parties Bound. This Agreement shall be binding upon and be
enforceable against Horizon and Horizon's Affiliates, and their
respective successors and representatives. This Agreement shall inure
to the benefit of each Beneficiary and their respective successors,
representatives and assigns.
(e) Invalid Provisions. If any provision of this Agreement
(including, without limitation, any provision relating to the
activities covered by, or time period of, the covenants contained in
Section 2 of this Agreement) is held to be illegal, invalid or
unenforceable under present or future laws effective during the term
hereof, such provision shall be fully severable; this Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof; and the remaining
provisions shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part
of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal,
valid and enforceable.
(f) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, Horizon acknowledges and
agrees that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
[Signature page follows]
S-1
SIGNATURE PAGE TO
NON-COMPETITION AGREEMENT
EXECUTED to be effective as of the date first above written.
HORIZON: Horizon Vision Centers, L.L.C.
Signature:
Printed Name:
Title: