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NON-COMPETE AGREEMENT
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THIS NON-COMPETE AGREEMENT ("Agreement") is entered into by and
between NCS HEALTHCARE, INC., a Delaware corporation (which for purposes of
this Agreement, together with all of its subsidiaries, will be referred to as
"NCS"), and FRANCIS J. CASSIDY, an individual and licensed pharmacist
("Cassidy").
RECITALS;
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A. As a shareholder of Uni-Care Health Services, Inc. and
Uni-Care Health Services of Maine, Inc. (collectively, the "Company"), Cassidy
has obtained valuable knowledge and experience pertaining to the Company's
business of proving pharmaceuticals, drugs, biologicals, IV's, medical devices,
durable medical equipment and other health or medical supplies and related
services to nursing homes, other institutional care facilities and individuals
residing in such facilities.
B. NCS is acquiring all of the stock of the Company,
including shares held by Cassidy, pursuant to a Stock Purchase Agreement, dated
as of May 15, 1996 (the "Stock Purchase Agreement"), by and among NCS, Cassidy
and others.
C. As a condition to such acquisition, NCS and Cassidy
desire to enter into an agreement to provide for a prohibition on his
disclosing confidential information of, competing against or otherwise
interfering with the Company.
In consideration of and in reliance upon the covenants,
obligations and agreements herein contained, NCS and Cassidy hereby agree as
follows:
1. NON-DISCLOSURE OF PROPRIETARY AND CONFIDENTIAL
INFORMATION. Cassidy covenants that he shall not, at any time during the
duration of this Agreement and at any time thereafter, disclose, communicate or
divulge to, or use for his personal benefit or for the benefit of, directly or
indirectly, any person, firm, association, partnership or corporation other
than the Company and its representatives, any private, confidential or
proprietary information. For purposes of this Agreement, the terms "private,"
"confidential" and "proprietary" information mean and include any and all
information relating to the terms and conditions of this Agreement, the Stock
Purchase Agreement or the transactions contemplated thereby, and any and all
information belonging to, used by, or which is in the possession of the Company
relating to the Company's business, products, services, strategies, pricing,
customers, representatives, suppliers, distributors, technology, programs,
finances, costs, employee compensation, marketing plans, developmental plans,
computer software (including all operating system and systems application
software), inventions, developments or trade secrets, all to the extent such
information is not intended by the Company to be disseminated to the public or
to other participants in the Company's trade
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or business or is otherwise not generally known to competitors of the Company.
Cassidy acknowledges that all of the private, confidential and proprietary
information is and shall continue to be the exclusive proprietary property of
the Company, whether or not prepared in whole or in part by Cassidy and whether
or not disclosed to or entrusted to the custody of Cassidy. Cassidy further
covenants that upon termination of his relationship with the Company, Cassidy
shall immediately turn over to the Company all originals and copies of
correspondence, letters, papers, reports, disks, lists and each and every
writing or record in the possession or control of Cassidy and pertaining to the
business of the Company. Cassidy further agrees that the Company shall be
entitled to all legal and equitable remedies for violation of this Section.
Notwithstanding the foregoing, with respect to information, the terms
"private," "confidential" and "proprietary" shall not include any of the
following:
(a) Such information that was a part of the public domain
prior to the date of this Agreement;
(b) Such information that became or becomes part of the
public domain not due to some unauthorized act or omission of Cassidy;
or
(c) Such information that is obtained from a third party
who is lawfully in possession of the same and did not obtain it from
the Company.
Notwithstanding the foregoing, Cassidy may disclose private,
confidential or proprietary information as required by law or in the event of
subpoena; provided, that Cassidy gives written notice to NCS prior to any
proposed disclosure, if permitted by law.
2. RESTRICTIVE COVENANT; NON-SOLICITATION.
(a) Cassidy acknowledges and agrees that in the course of
performing services for the Company he has become acquainted with and
has learned about the affairs of the Company, its officers and
employees, its services, products, business practices, financial
condition, operations, programs, "know-how," procedures, customers, the
needs and requirements of its customers, trade secrets and other
private, confidential or proprietary information that the Company has
or will acquire at its cost and expense, and has and will continue to
develop business relationships with the Company's clients, potential
clients and its suppliers. Therefore, as an essential ingredient in
consideration of this Agreement, Cassidy hereby agrees that in addition
to any other obligations or duties he owes to the Company, that until
the fifth anniversary of this Agreement, Cassidy will not, without the
express, written consent of the Company, directly or indirectly,
whether as an individual, Employee, sole proprietor, principal, owner,
partner, shareholder (except as a holder of one percent (1%) or less of
any class of outstanding securities listed on any national securities
exchange or actively traded in an over-the-counter market), officer,
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director, trustee, administrator, manager, agent, consultant,
independent contractor, formal or informal advisor or by or through the
lending of any form of assistance;
(i) Engage in any business activities competitive with the
Business of the Company (hereinafter defined), its successors and
assigns; or
(ii) Offer or endeavor to offer any goods or services the
Company provided or any goods or services substantially similar to
those of the Company at the time of termination of Cassidy's
relationship with the Company (or its successors or assigns); or
(iii) Within the states of New Hampshire, Massachusetts,
Maine, Vermont, Connecticut, New York Ohio, Pennsylvania, Indiana,
Michigan, Illinois, Missouri, Wisconsin, Minnesota and Iowa offer or
endeavor to offer any goods or services the Company provided or any
goods or services substantially similar to those of the Company at
the time of termination of Cassidy's relationship with the Company
(or its successors or assigns); or
(iv) Compete with the Company for the business of any
customer or a potential customer of the Company with whom Cassidy had
contact during his relationship with the Company that involves the
same or substantially similar goods or services as those for which
Cassidy was directly or indirectly responsible at the time of
termination of Cassidy's relationship with the Company (or its
successors or assigns); or
(v) Solicit, divert or take away or attempt to solicit,
divert or take away any business of the Company with anyone who is a
customer of the Company at the time of the termination of Cassidy's
relationship with the Company (or its successors or assigns); or
(vi) Solicit, take away, hire, employ or attempt to
solicit, take away, hire or employ any of the Employees of the
Company (or its successors or assigns).
For purposes of this Agreement, the "Business of the Company"
is defined to include the sale of pharmaceuticals, pharmacy and medical
devices, supplies and equipment, IV's and related products to nursing
homes and/or other long-term care facilities, which offer skilled,
intermediate and/or assisted living care.
(b) Notwithstanding the foregoing, nothing herein shall
prevent Cassidy from engaging in the sale of pharmaceuticals, pharmacy
and medical devices, supplies and equipment, IV's and related products
in a retail setting, by mail order, to a group home or in the course of
offering of home health services, including nursing care. Company
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acknowledges that Cassidy is significantly involved in the retail
pharmacy and medical supply/home health businesses.
3. INJUNCTIVE RELIEF. Cassidy recognizes that a breach or
threatened breach by Cassidy of this Agreement will cause irreparable injury to
the Company that is inadequately compensable in damages and, as a result, the
Company will not have an adequate remedy at law to redress such injury.
Therefore, in the event Cassidy threatens to violate or violates any provision
of this Agreement, Cassidy agrees that in addition to its other remedies, the
Company shall be entitled to injunctive relief including, but not limited to,
temporary restraining orders and/or preliminary or permanent injunctions to
restrain or enjoin any violation or threatened violation of this Agreement.
4. ENFORCEMENT AND SURVIVAL OF NON-PIRACY AND NON-COMPETE
COVENANTS AND-NON-DISCLOSURE AND CONFIDENTIALITY PROVISIONS. The provisions of
Sections 1, 2 and 3 and the other associated provisions of this Agreement shall
survive the termination of this Agreement. It is understood and agreed that the
restrictions set forth in Sections 1 and 2 herein were bargained for by the
Company as a material term under the Stock Purchase Agreement.
Notwithstanding anything herein to the contrary, Cassidy
understands and expressly consents and agrees that (a) a change in ownership of
the Company could occur or (b) the Company may sell or otherwise transfer
substantially all of its operating assets of its business to a third party and,
as part of such sale, assign the Company's rights and obligations hereunder to
such third party purchaser. In either such event, Cassidy acknowledges and
agrees that the provisions regarding non-disclosure, non-piracy and
non-competition contained herein shall be enforceable by such new owner(s)
through the Company or a third party purchaser/assignee.
5. MISCELLANEOUS PARAGRAPHS.
(a) EXTENSION OF RESTRICTIVE COVENANTS. If a
court of competent jurisdiction finds that Cassidy has violated
any of the restrictions or covenants set forth in Section 2 of
this Agreement, then the parties agree that the period of all
restrictions and covenants set forth in Section 2 automatically
shall be extended by the number of days that the court
determines Cassidy to have been in violation of such
restriction or covenant.
(b) REASONABLENESS OF TERMS; SEVERABILITY. Both
NCS and Cassidy stipulate and agree that covenants and other
terms contained in this Agreement are reasonable in all
respects, including time period, geographical area and scope of
restricted activities, and that the restrictions contained
herein are designed to protect the Company's business and
ensure that Cassidy does not engage in unfair competition with
the Company. In the event that any provision, term or
restriction of this Agreement (or portion thereof) shall be
held invalid, illegal or otherwise unenforceable in any
respect, such provision, term or
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restriction (or portion thereof) shall be modified or, if necessary,
severed and the balance of this Agreement shall continue in full force
and effect.
(c) NOTICES. All notices or other communications hereunder
shall not be binding on either party hereto unless in writing, and
delivered to the other party hereto at the following address:
If to NCS: NCS HEALTHCARE, INC.
3201 Enterprise Parkway, Suite 220
Beachwood, Ohio 44122
Attn: President
If to Cassidy: Francis J. Cassidy
216 Dover Point Road
Dover, New Hampshire 03820
Notices shall be deemed duly delivered upon hand delivery
thereof at the above addresses or two days after deposit thereof in the United
States mails, postage prepaid, certified or registered mail. Either party may
change its address for notice by delivery of written notice thereof in the
manner provided.
(d) WAIVER. Failure of any party hereto to insist upon
strict compliance with any of the terms, covenants and conditions hereof
shall not be deemed a waiver or relinquishment of any similar right or
power hereunder at any subsequent time.
(e) BINDING AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of NCS, its successors or assigns, and
Cassidy and his heirs, executors, administrators, and legal
representatives. Cassidy shall not have any right to anticipate,
alienate or assign any of his rights or obligations under this
Agreement, and any effort to do so shall be null and void.
(f) ENTIRE AGREEMENT; AMENDMENT. THE PARTIES HERETO
ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS. The parties further acknowledge this
Agreement together with the Stock Purchase Agreement to be the complete
and final understanding between them, superseding any and all other
contracts or proposals, oral or written, and any and all other
communications between them relating to the subject matter of this
Agreement. Except as provided herein, this Agreement cannot be amended,
modified or supplemented in any respect except by a subsequent written
agreement entered into by the parties.
(g) EFFECTIVE DATE. Upon execution by the parties, this
Agreement shall be deemed effective as of May 15, 1996.
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INTENDING TO BE LEGALLY BOUND, the parties or their duly authorized
representatives have signed this Agreement.
NCS HEALTHCARE, INC.,
a Delaware corporation
By: /s/ Kevin B. Shaw
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Its: CEO
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"NCS"
/s/ Francis J. Cassidy
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Francis J. Cassidy
"Cassidy"
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