EXHIBIT 10(f)
COVENANT
NOT TO COMPETE AGREEMENT
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THIS COVENANT NOT TO COMPETE AGREEMENT is made and entered effective as of
February 27, 1995, by and among CLINICOR, INC., a Nevada corporation, formerly
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known as PEGASUS TAX AND FINANCIAL PLANNING SERVICES, INC. (the "Corporation"),
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇ ("▇'▇▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇").
RECITALS
▇. ▇'▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ are employees, officers, directors and principal
shareholders of this Corporation.
B. In consideration of the merger of their former company, Clinicor,
Inc., a Texas corporation, into this Corporation pursuant to that certain
Agreement and Plan of Merger dated February 17, 1995 (the "Merger Agreement")
under which they were issued shares and stock options in this Corporation, and
as a condition of their continued employment, they have agreed to enter into
this Covenant Not To Compete Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein, and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. COVENANT NOT TO COMPETE.
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A. COVENANT. For a period commencing from the Effective Time (as
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defined in the Merger Agreement) and ending two years after their termination of
employment either voluntarily or by this Corporation "for cause" (defined to
include but not be limited to (i) neglect of his duties or a violation of any of
the provisions of any employment agreement or other arrangement with the
Corporation, which continues after written notice and a reasonable opportunity
(not to exceed thirty (30) days) in which to cure; (ii) fraud, embezzlement,
defalcation or conviction of any felonious offense; or (iii) intentionally
imparting confidential information relating to the Corporation or its business
to competitors or to other third parties other than in the course of carrying
out his corporate duties) (hereinafter the "Covenant Period"), neither ▇'▇▇▇▇▇▇▇
or ▇▇▇▇▇▇ shall, directly or indirectly, engage or participate in any activities
within the United States (hereinafter the "Covenant Territory"), which are the
same as, or competitive with, the activities the Corporation presently performs
or contemplates performing as set forth in Clinicor's Business Plan (as
identified in the Merger Agreement) (hereinafter the "Prohibited Activities").
B. COVENANT SEVERABILITY. ▇'▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ agree that the above
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covenant shall be deemed a series of separate covenants, one for each state and
county in the Covenant Territory. Each covenant shall be deemed independent and
severable. The invalidity or partial invalidity or unenforceability of any one
covenant shall not affect the validity or unenforceability of any other covenant
provided in this Section.
2. MISCELLANEOUS.
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A. ADDITIONAL DOCUMENTS. Each of the parties agrees to execute and
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deliver, at the request of the other party, any and all other documents or other
written instruments as may be reasonably necessary to effectuate the purposes of
this Agreement.
B. APPLICABLE LAW. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Texas.
C. ATTORNEYS' FEES; COSTS. If a party breaches this Agreement, the
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breaching party shall pay all costs and attorneys' fees incurred by the other
party in connection with such breach, whether or not any arbitration or
litigation is commenced.
D. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which may be executed by less than all of the parties,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one (1) instrument.
E. DESCRIPTIVE HEADINGS. The headings used herein are descriptive
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only and for the convenience of identifying provisions, and are not
determinative of the meaning or effect of any such provisions.
F. ENTIRE AGREEMENT. This Agreement constitutes the entire
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agreement and understanding among the parties with respect to the subject
matters herein and supersedes and replaces any prior agreements and
understandings, whether oral or written, between and among them with respect to
such matters. The provisions of this Agreement may be waived, altered, amended
or repealed in whole or in part only upon the written consent of all parties to
this Agreement and either ▇▇▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇ so long as either ▇▇▇▇ is a
shareholder in the Corporation.
G. NO IMPLIED WAIVERS. The failure of either party at any time to
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require performance by the other party of any provision hereof shall not affect
in any way the right to require such performance at any time thereafter, nor
shall the waiver by either party of a breach of any provision hereof be taken or
held to be a waiver of any subsequent breach of the same provision or any other
provision.
H. NONASSIGNABILITY. Neither this Agreement, nor any interest
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herein, shall be assigned, transferred, hypothecated or otherwise conveyed by
any party without the prior written consent of the other parties. Any such
attempted conveyance in violation of this Section shall be void.
I. SEVERABILITY. If for any reason any provision of this Agreement
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shall be determined to be invalid or inoperative, the validity and effect of the
other provisions hereof shall not be affected thereby, provided that no such
severability shall be effective if it causes a material detriment to any party.
J. SUCCESSORS AND ASSIGNS. Subject to any provisions herein with
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regard to assignment, all covenants and agreements herein shall bind and inure
to the benefit of the respective heirs, executors, administrators, successors
and assigns of the parties hereto.
K. NOTICE. Any notice, payment, report or other communication
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required or permitted to be given by one party to any other party by this
Agreement shall be in writing and either (i) served personally on the other
party; (ii) sent by express, registered or certified first class mail, postage
prepaid, addressed to the other party or parties at its address indicated next
to their signatures below, or to such other address as any addressee shall have
theretofore furnished to the other parties by like notice; (iii) delivered by
commercial courier to the other party; or (iv) sent by facsimile with the
original sent by express mail. Such notice shall be deemed received on the
second day after transmittal if sent by one day courier together with a
transmission of such notice by facsimile if the recipient has the capability to
receive a facsimile at its address and if sent by other methods shall be deemed
received upon receipt.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
CLINICOR, INC., FORMERLY
PEGASUS TAX AND FINANCIAL PLANNING SERVICES, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
by /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
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(Signature)
▇▇▇▇▇▇ ▇.▇'▇▇▇▇▇▇▇, PRESIDENT
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(Print Name & Title)
/s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ 3709 ▇▇▇▇▇▇▇
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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(Address) (Address)
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