EXHIBIT 10.6
NON-COMPETITION AGREEMENT
AGREEMENT made this 30th day of January, 1998, between ElderTrust, a
Maryland real estate investment trust (the "Company"), and Michael R. Walker,
Chairman of the Board of Trustees of the Company ("Walker").
WHEREAS, the Company and Walker 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 Walker
serves as a trustee of the Company, Walker 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 Walker as an officer,
director or employee of, or any interest of Walker 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, Walker 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. Walker 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 Walker and/or all
other Persons involved therein from continuing such breach. The existence of
any claim or cause of action which Walker 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. Walker 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 Walker 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:
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if to the Company:
ElderTrust
415 McFarlan Road, Suite 202
Kennett Square, Pennsylvania 19348
Attention: President
Telecopy No.: (610) 444-0815; and
if to Walker: at the address specified under Walker's 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 Walker 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.
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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 January 30, 1998 to be effective as of such date.
ELDERTRUST
By: /s/ Edward B. Romanov, Jr.
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Edward B. Romanov, Jr.
President and Chief Executive Officer
Date of execution: 3/9/98
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/s/ Michael R. Walker
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Michael R. Walker
c/o Genesis Health Ventures, Inc.
148 West State Street
Kennett Square, Pennsylvania 19348
Telecopy Number: (610) 444-3365
Date of execution:
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