Exhibit 10(f)
NONCOMPETITION AGREEMENT
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In consideration of (i) the purchase all of the outstanding stock of
Surgical & Orthopedic Specialties, Ltd., a Michigan corporation ("Surgical"),
from Xxxxxxx X. Xxxxxx ("Xxxxxx") by Xxxxxxxxx Medical Technology, Inc., a
Delaware corporation ("Xxxxxxxxx"), pursuant to the terms of that certain Stock
Purchase Agreement among Xxxxxx, Surgical, and Xxxxxxxxx of even date herewith
("Stock Purchase Transaction"), and (ii) the payment to Xxxxxx the sum of
$100,000.00 pursuant to the terms of a Noncompetition Note, attached hereto as
Exhibit A, Xxxxxx, without reservation, freely enters into this Agreement with
Xxxxxxxxx and any of its present or future subsidiaries (collectively referred
to herein as the "Xxxxxxxxx Companies").
A. NONCOMPETITION
Xxxxxx agrees that for a period of five years after the closing date of the
Stock Purchase Transaction ("Noncompetition Period"), Xxxxxx will not:
(1) engage or participate, directly or indirectly, either as principal,
agent, employee, employer, consultant, stockholder (except as the holder of not
more than two percent of the stock of any publicly traded corporation), or in
any other individual or representative capacity whatsoever, in the operation,
management or ownership of any business, firm, corporation, association, or
other entity engaged in the design, manufacture, marketing, sale or lease of
continuous passive motion, thermal therapy or similar orthopedic rehabilitation
devices, spinal implants, or spinal instruments, or any other business engaged
in by the Xxxxxxxxx Companies at any time during the Noncompetition Period; or,
(2) directly or indirectly, for himself or in conjunction with or on
behalf of any other individual or entity, solicit, divert, take away or endeavor
to take away from the Xxxxxxxxx Companies any customer, account or employee of
the Xxxxxxxxx Companies at any time during the Noncompetition Period.
In the event of a violation of this Agreement, the Noncompetition Period
shall be tolled during the time of such violation.
B. EMPLOYMENT STATUS
Xxxxxx understands and acknowledges that this Agreement does not constitute
an employment contract with Xxxxxxxxx. The provisions contained herein in no
way alter, amend, or modify that certain Employment Agreement between Xxxxxx and
Xxxxxxxxx of even date herewith.
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C. SAVING
If any provision of this Agreement shall be found invalid, illegal, or
unenforceable in whole or in part, neither the validity of the remaining part of
such provision nor the validity of any other provision shall be in any way
affected thereby. Moreover, if any provision is for any reason held to be
excessively broad as to time, duration, geographical scope, activity, or
subject, such provision shall be construed by limiting and reducing it to
preserve enforceability to the maximum extent compatible with the applicable
law.
D. WAIVER BY XXXXXXXXX COMPANIES OF BREACH OF AGREEMENT
Waiver by the Xxxxxxxxx Companies of a breach of any provision of this
Agreement by Xxxxxx shall not operate or be construed as a waiver of any
subsequent breach by Xxxxxx.
E. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State
of Ohio, without reference to its conflicts of laws principles.
F. FINAL AGREEMENT
Except for that certain Employment Agreement between Xxxxxx and Xxxxxxxxx
of even date herewith, this Agreement supersedes any existing agreement entered
into between Xxxxxx and Xxxxxxxxx relating to the same subject matter and may be
changed only by an agreement in writing signed by Xxxxxx and a duly authorized
representative of Xxxxxxxxx.
G. INJUNCTIVE RELIEF
In the event of an actual threat or breach by Xxxxxx of the provisions of
this Agreement, the Xxxxxxxxx Companies shall be entitled to an injunction
restraining Xxxxxx from owning, managing, operating, controlling, being employed
by, participating in, or being in any way so connected with the business which
is a competitor of the Xxxxxxxxx Companies within any geographic area in which
the Xxxxxxxxx Companies compete and do business, or from otherwise violating
this Agreement. Nothing herein stated shall be construed as prohibiting the
Xxxxxxxxx Companies from pursuing any other remedies available to the Xxxxxxxxx
Companies for such breach or threatened breach, including recovery of damages.
Any action relating to this Agreement or any breach thereof shall be brought in
the Court of Common Pleas of Franklin County, Ohio; each party submits to the
personal jurisdiction of such court for such purpose and waives any objection to
venue in such court.
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THE UNDERSIGNED PARTIES HEREBY ACKNOWLEDGE THAT THEY HAVE READ, UNDERSTOOD,
AND RECEIVED A COPY OF THIS AGREEMENT, AND HAVE ENTERED INTO IT VOLUNTARILY.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Date: September 6, 1996
EMPLOYER:
XXXXXXXXX MEDICAL TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Its: President
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Date: September 6, 1996
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