THE COMPANY OR EMPLOYER FROM
PURSUING ANY OTHER REMEDIES AVAILABLE TO IT FOR A BREACH OR
4
THREATENED BREACH OF ANY OF THE RESTRICTIVE COVENANTS, INCLUDING THE RECOVERY OF
ANY DAMAGES WHICH IT IS ABLE TO PROVE.
* * * *
5
IN WITNESS WHEREOF, the Company and the Participant have executed this Agreement
as of the date first written above.
COMPANY:
NOVAMED, INC.
By:
Its:
PARTICIPANT:
[name]
6
ANNEX A
RESTRICTIVE COVENANTS
1. PARTICIPANT'S ACKNOWLEDGMENT.
PARTICIPANT ACKNOWLEDGES THAT:
(A)
THE COMPANY IS ENGAGED IN THE BUSINESS OF:
(I) OWNING, OPERATING
AND/OR MANAGING AMBULATORY SURGERY CENTERS AND OTHER OUTPATIENT SURGICAL
FACILITIES, OPTICAL DISPENSARIES, WHOLESALE OPTICAL LABORATORIES, AN OPTICAL
SUPPLIES AND EQUIPMENT PURCHASING ORGANIZATION, AND A MARKETING SERVICES AND
PRODUCTS COMPANY THAT PROVIDES MARKETING SERVICES AND PRODUCTS TO EYE CARE
PROVIDERS AS WELL AS MARKETING AND LEAD-TRACKING SOFTWARE, WEBSITES, CALL CENTER
SERVICES AND OTHER MARKETING SERVICES TO HEALTH CARE PROVIDERS AND
MANUFACTURERS; AND (II) PROVIDING COMPREHENSIVE SERVICES TO EYE CARE PROVIDERS
AND BUSINESSES ANCILLARY THERETO, INCLUDING, WITHOUT LIMITATION, PROVIDING
FINANCIAL, ADMINISTRATIVE, INFORMATION TECHNOLOGY, MARKETING AND MANAGED CARE
SERVICES AND OPHTHALMIC SURGICAL EQUIPMENT TO OPHTHALMIC AND OPTOMETRIC
PROVIDERS (COLLECTIVELY, THE "BUSINESS");
(B)
THE COMPANY IS AND WILL BE ENGAGED IN THE BUSINESS DURING THE
PARTICIPANT'S EMPLOYMENT WITH THE COMPANY AND THEREAFTER;
(C)
PARTICIPANT IS ONE OF A LIMITED NUMBER OF PERSONS WHO WILL BE
DEVELOPING THE BUSINESS;
(D)
PARTICIPANT WILL OCCUPY A POSITION OF TRUST AND CONFIDENCE WITH
THE COMPANY AFTER THE DATE OF THIS AGREEMENT, AND DURING SUCH PERIOD AND
PARTICIPANT'S EMPLOYMENT, PARTICIPANT WILL BECOME FAMILIAR WITH THE COMPANY'S
TRADE SECRETS AND WITH OTHER PROPRIETARY AND CONFIDENTIAL INFORMATION CONCERNING
THE COMPANY AND THE BUSINESS;
(E)
THE AGREEMENTS AND COVENANTS CONTAINED IN THIS ANNEX A ARE
ESSENTIAL TO PROTECT THE COMPANY AND THE GOODWILL OF THE BUSINESS AND ARE A
CONDITION PRECEDENT TO THE COMPANY ENTERING INTO THIS AGREEMENT;
(F)
PARTICIPANT'S EMPLOYMENT WITH THE COMPANY HAS SPECIAL, UNIQUE AND
EXTRAORDINARY VALUE TO THE COMPANY AND THE COMPANY WOULD BE IRREPARABLY DAMAGED
IF PARTICIPANT WERE TO PROVIDE SERVICES TO ANY PERSON OR ENTITY IN VIOLATION OF
THE PROVISIONS OF THIS AGREEMENT;
(G)
PARTICIPANT HAS MEANS TO SUPPORT HIMSELF OR HERSELF AND HIS OR HER
DEPENDENTS OTHER THAN BY ENGAGING IN THE BUSINESS, OR A BUSINESS SIMILAR TO THE
BUSINESS, AND THE PROVISIONS OF THIS ANNEX A WILL NOT IMPAIR SUCH ABILITY; AND
(H)
FOR PURPOSES OF THIS ANNEX A, THE TERM "COMPANY" SHALL INCLUDE THE
COMPANY, THE EMPLOYER AND ANY OF THEIR RESPECTIVE SUBSIDIARIES AND AFFILIATES.
2. NON-COMPETE.
PARTICIPANT HEREBY AGREES THAT FOR A PERIOD COMMENCING ON THE
DATE HEREOF AND ENDING ON THE DATE OF TERMINATION OF HIS OR HER EMPLOYMENT WITH
THE COMPANY (THE "TERMINATION DATE"), AND THEREAFTER, THROUGH THE LATER OF
(A) THE PERIOD ENDING ON THE FIRST ANNIVERSARY OF THE TERMINATION DATE OR (B) AS
APPLICABLE, THE PERIOD ENDING AT THE CONCLUSION OF
7
THE SEVERANCE PERIOD AS DEFINED IN THE PARTICIPANT'S EMPLOYMENT AGREEMENT
(COLLECTIVELY, THE "RESTRICTIVE PERIOD"), PARTICIPANT SHALL NOT, DIRECTLY OR
INDIRECTLY, AS