{"id":39892,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-nonsolicitation-noncompetition-and-confidentiality.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-nonsolicitation-noncompetition-and-confidentiality","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-nonsolicitation-noncompetition-and-confidentiality.html","title":{"rendered":"Executive Nonsolicitation, Noncompetition, and Confidentiality Agreement – Gentiva Health Services Inc."},"content":{"rendered":"

EXECUTIVE NON-SOLICITATION, NON-COMPETITION<\/p>\n

AND CONFIDENTIALITY AGREEMENT<\/p>\n

THIS AGREEMENT dated as of October 26, 2009 by and between Gentiva Health
\nServices, Inc., a Delaware corporation (“Gentiva”), and Eric R. Slusser
\n(“Employee”).<\/p>\n

W<\/u> I<\/u> T<\/u> N<\/u> E<\/u> S<\/u> S<\/u>
\nE<\/u> T<\/u> H<\/u>:<\/p>\n

WHEREAS, Employee acknowledges that Gentiva is engaged in the highly
\ncompetitive business of providing home healthcare services and that Employee has
\njob responsibilities covering the areas in and around the locations listed in
\nAttachment 1 to this Agreement. Gentiva153s engagement in this business has
\ninvolved and continues to involve the expenditure of substantial amounts of
\nmoney and the use of skills developed over a long period of time. As a result of
\nthese investments of money, skill and time, Gentiva has developed and will
\ncontinue to develop certain valuable Trade Secrets and Confidential Information
\nthat are peculiar to Gentiva153s business and the disclosure of which would cause
\nGentiva great and irreparable harm. Gentiva has also invested a great deal of
\ntime and money in developing relationships with its employees, patients and
\nreferral sources;<\/p>\n

WHEREAS, Employee acknowledges that in rendering services to Gentiva,
\nEmployee will be exposed to and learn much information about Gentiva153s business,
\nincluding valuable Confidential Information and Trade Secrets, which Employee
\nwould not have access to if not for Employee153s employment with Gentiva and which
\nit would be unfair to disclose to others, or to use to Gentiva153s disadvantage;\n<\/p>\n

WHEREAS, Employee acknowledges that the restrictions contained in this
\nAgreement are necessary and reasonable to protect Gentiva153s legitimate business
\ninterests in its Trade Secrets, valuable Confidential Information, relationships
\nwith its employees and relationships and goodwill with its patients and referral
\nsources; and<\/p>\n

WHEREAS, Employee acknowledges that Employee153s skills, education and training
\nqualify Employee to work and obtain employment which does not violate this
\nAgreement and that the restrictions in this Agreement have been crafted as
\nnarrowly as reasonably possible to protect Gentiva153s legitimate business
\ninterests in its Trade Secrets, valuable Confidential Information, relationships
\nwith its employees and relationships and good will with its patients and
\nreferral sources.<\/p>\n

\n

NOW, THEREFORE, in consideration of the mutual promises and obligations in
\nthis Agreement, including but not limited to, Gentiva153s employing or continuing
\nto employ Employee as an at-will employee, and other good and valuable
\nconsideration, the receipt and sufficiency of which are hereby mutually
\nacknowledged, Gentiva and Employee agree as follows:<\/p>\n\n\n\n
\n

1.<\/strong><\/p>\n<\/td>\n

\n

Non-Solicitation of Patients and Referral Sources<\/u><\/strong>\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Employee agrees that during Employee153s employment with Gentiva and for a
\nperiod of one (1) year after termination of Employee153s employment with Gentiva
\nfor any reason, except on behalf of Gentiva, Employee will not directly or
\nindirectly solicit, contact, call upon, communicate with or attempt to
\ncommunicate with any patient or referral source of Gentiva for the purpose of
\nproviding home healthcare services. This restriction shall apply only to any
\npatient or referral source of Gentiva with whom Employee had Material Contact
\nduring the last twelve months of Employee153s employment with Gentiva. “Material
\nContact” for purposes of this Section 1 means contact between Employee and the
\npatient for the purpose of furthering the patient153s healthcare or contact
\nbetween Employee and the referral source for the purpose of furthering the
\nreferral relationship.<\/p>\n\n\n\n
\n

2.<\/strong><\/p>\n<\/td>\n

\n

Non-Solicitation of Employees<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Employee agrees that during Employee153s employment with Gentiva and for a
\nperiod of one (1) year after termination of Employee153s employment with Gentiva
\nfor any reason, Employee will not recruit, hire or attempt to recruit or hire,
\ndirectly or by assisting others, any other employee of Gentiva with whom
\nEmployee had Material Contact during Employee153s employment with Gentiva.
\n“Material Contact” for the purposes of this Section 2 means contact between
\nEmployee and the other employee of Gentiva for the purpose of furthering
\nGentiva153s business.<\/p>\n\n\n\n
\n

3.<\/strong><\/p>\n<\/td>\n

\n

Non-Competition<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Employee agrees that during Employee153s employment with Gentiva and for a
\nperiod of one (1) year after termination of Employee153s employment with Gentiva
\nfor any reason, except on behalf of Gentiva, Employee shall not, on Employee153s
\nown behalf or on another153s behalf, (i) work in a financial or management
\ncapacity in the business of providing home healthcare services or (ii) own,
\noperate, control or provide services or financial assistance to any business
\nproviding home healthcare services, except that Employee may own for investment
\npurposes only up to 1% of the capital stock of any such business whose stock is
\npublicly traded. These restrictions shall apply only within a 25 mile radius of
\nEmployee153s primary place of employment with Gentiva located at 3350 Riverwood
\nParkway, Atlanta, Georgia and a 15 mile radius of each Gentiva location listed
\nin Attachment 1 to this Agreement. Employee agrees that because of the nature of
\nGentiva153s business, the nature of Employee153s job responsibilities, and the
\nnature of the<\/p>\n

2<\/p>\n

\n

Confidential Information and Trade Secrets of Gentiva to which Gentiva will
\ngive Employee access, any breach of this provision by Employee would result in
\nthe inevitable disclosure of Gentiva153s Trade Secrets and Confidential
\nInformation to its direct competitors.<\/p>\n\n\n\n
\n

4.<\/strong><\/p>\n<\/td>\n

\n

Confidentiality<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

A. During Employee153s employment with Gentiva and at any time after the
\ntermination of Employee153s employment with Gentiva for any reason, Employee will
\nnot publish or disclose, use for Employee153s own benefit or the benefit of
\nothers, or divulge or convey to others, any Trade Secrets of Gentiva or that of
\nthird parties obtained by Employee in the course of Employee153s employment with
\nGentiva. “Trade Secret” means any and all information, knowledge or data in any
\nform whatsoever, tangible or intangible, that is considered a trade secret under
\napplicable law. This promise of confidentiality is in addition to, and does not
\nlimit, any common law or statutory rights of Gentiva to prevent disclosure of
\nits Trade Secrets.<\/p>\n

B. Employee further agrees that during Employee153s employment with Gentiva and
\nfor three (3) years after the termination of Employee153s employment with Gentiva
\nfor any reason, Employee will not publish or disclose, use for Employee153s own
\nbenefit or the benefit of others, or divulge or convey to others, any
\nConfidential Information of Gentiva. “Confidential Information” means any and
\nall proprietary business, financial and patient information in any form,
\ntangible or intangible, that is treated as confidential or secret by Gentiva,
\nbut does not constitute a Trade Secret. This promise of confidentiality is in
\naddition to, and does not limit, any common law or statutory rights of Gentiva
\nto prevent disclosure of Confidential Information.<\/p>\n

Upon termination of Employee153s employment with Gentiva or at any other time
\nat Gentiva153s request, Employee agrees to deliver promptly to Gentiva all Gentiva
\nproperty, including, but not limited to, patient lists or names, addresses and
\nservices, patient background information, patient files, patient care
\ndirectives, all drawings, blueprints, manuals, letters, notes, notebooks,
\nreports, sketches, formulae, manufacturing processes, source codes, computer
\nprograms, financial information and similar items, memoranda, referral sources,
\npatients or business lists and all other materials and all copies thereof
\nrelating in any way to Gentiva153s business or patients and in any way obtained by
\nEmployee during the period of Employee153s employment with Gentiva which are in
\nEmployee153s possession, custody or control. Employee further agrees not to make
\nor retain any copies of any of the foregoing and will so represent to Gentiva
\nupon termination of Employee153s employment.<\/p>\n\n\n\n
\n

5.<\/strong><\/p>\n<\/td>\n

\n

Proprietary Information and Inventions<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

A. Employee agrees that any and all information and data originated by
\nEmployee while employed by Gentiva and, where applicable, by other<\/p>\n

3<\/p>\n

\n

employees or associates under Employee153s direction or supervision in
\nconnection with or as a result of Employee153s employment, shall be promptly
\ndisclosed to Gentiva, shall become Gentiva153s property, and shall be kept
\nconfidential by Employee. Any and all such information and data, reduced to
\nwritten, graphic, or other tangible form and any and all copies and
\nreproductions thereof shall be furnished to Gentiva upon request and in any case
\nshall be returned to Gentiva upon termination of Employee153s employment with
\nGentiva.<\/p>\n

B. Employee agrees that Employee will promptly disclose to Gentiva all
\ninventions or discoveries made, conceived, or for the first time reduced to
\npractice in connection with or as a result of the work and\/or services Employee
\nperforms for Gentiva.<\/p>\n

C. Employee agrees that Employee will assign the entire right, title, and
\ninterest in any such invention or inventions and any patents that may be granted
\nthereon in any country in the world concerning such inventions to Gentiva.
\nEmployee further agrees that Employee will, without expense to Gentiva, execute
\nall documents and do all acts which may be necessary, desirable, or convenient
\nto enable Gentiva, at its expense, to file and prosecute applications for
\npatents on such inventions, and to maintain patents granted thereon.<\/p>\n\n\n\n
\n

6.<\/strong><\/p>\n<\/td>\n

\n

Non-Disparagement<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Employee agrees that during Employee153s employment with Gentiva and for a
\nperiod of three (3) years following the termination of Employee153s employment
\nwith Gentiva, Employee will not take any action or make any statement which
\ndisparages Gentiva or its practices or which disrupts or impairs its normal
\noperations. Nothing in this provision shall limit any common law or statutory
\nrights of Gentiva or obligations of Employee.<\/p>\n\n\n\n
\n

7.<\/strong><\/p>\n<\/td>\n

\n

Equitable Relief<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Employee acknowledges that the services to be rendered by Employee are of a
\nspecial and intellectual character, which gives them a peculiar value, that
\nEmployee possesses unique skills, knowledge and ability, and that any breach of
\nthe provisions of this Agreement would cause Gentiva irreparable injury which
\nwould not reasonably or adequately be compensated by damages in an action at
\nlaw. Therefore, Employee agrees that Gentiva shall be entitled, in addition to
\nany other remedies it may have under this Agreement, at law, or otherwise, to
\nimmediate injunctive and other equitable relief to prevent or curtail any breach
\nof this Agreement by Employee. In addition, in the event of a breach of this
\nAgreement by Employee, Employee agrees and acknowledges that Employee will
\nforfeit all options to purchase stock granted to Employee, vested or unvested
\nand\/or the proceeds from the sale of stock obtained from options granted to
\nEmployee during the term of Employee153s employment with Gentiva. Nothing in this
\nAgreement shall prohibit Gentiva from seeking or recovering any legal or
\nmonetary damages to which it may be entitled if Employee breaches this<\/p>\n

4<\/p>\n

\n

Agreement. Employee agrees to pay any and all reasonable attorneys153 fees
\nincurred by Gentiva in successfully enforcing any covenant contained in this
\nAgreement.<\/p>\n\n\n\n
\n

8.<\/strong><\/p>\n<\/td>\n

\n

Severability<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Employee and Gentiva expressly agree that the covenants and agreements
\ncontained in this Agreement are separate, severable, and divisible, and in the
\nevent any portion or portions of such paragraphs are declared invalid or
\nunenforceable, the validity of the remaining paragraphs of this Agreement will
\nnot be affected. If any provision contained herein shall for any reason be held
\nexcessively broad or unreasonable as to time, territory, or interest to be
\nprotected, the court is hereby empowered and requested to construe said
\nprovision by narrowing it, so as to make it reasonable and enforceable to the
\nextent provided under applicable law.<\/p>\n\n\n\n
\n

9.<\/strong><\/p>\n<\/td>\n

\n

Waiver<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

The waiver by Gentiva of a breach of any provision of this Agreement by
\nEmployee shall not operate or be construed as a waiver of any subsequent breach
\nby Employee or of any of Gentiva153s rights hereunder.<\/p>\n\n\n\n
\n

10.<\/strong><\/p>\n<\/td>\n

\n

Entire Agreement<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

This Agreement contains the entire agreement between the parties with respect
\nto the subject matter contained in this Agreement. It may not be changed orally,
\nbut only by an agreement in writing signed by the President of Gentiva and
\nEmployee. This Agreement supersedes any prior or contemporaneous discussions,
\nnegotiations, understandings, arrangements, or agreements between Gentiva and
\nEmployee with respect to the subject matter contained in this Agreement.<\/p>\n\n\n\n
\n

11.<\/strong><\/p>\n<\/td>\n

\n

Future Employers<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Employee agrees that Gentiva may notify anyone employing Employee or
\nevidencing an intention to employ Employee as to the existence and provisions of
\nthis Agreement and may provide any such person or organization a copy of this
\nAgreement. Employee agrees that for a period of three (3) years after
\ntermination of Employee153s employment with Gentiva for any reason, Employee will
\nprovide Gentiva the identity of any employer Employee goes to work for along
\nwith Employee153s job title and anticipated job duties with any such employer.
\nEmployee further agrees to provide a copy of this Agreement to anyone who
\nemploys Employee within three (3) years of the termination of Employee153s
\nemployment with Gentiva.<\/p>\n

5<\/p>\n

\n\n\n\n
\n

12.<\/strong><\/p>\n<\/td>\n

\n

Binding Effect<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

The covenants, terms, and provisions set forth in this Agreement shall inure
\nto the benefit of and be enforceable by Gentiva and its successors, assigns, and
\nsuccessors-in-interest, including, without limitation, any corporation,
\npartnership, or other entity with which Gentiva may be merged or by which it may
\nbe acquired. This Agreement may be assigned by Gentiva without Employee153s
\nconsent. Employee may not assign Employee153s rights and obligations under this
\nAgreement to any other party.<\/p>\n\n\n\n
\n

13<\/strong><\/p>\n<\/td>\n

\n

Employment At-Will Relationship<\/u><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Employee and Gentiva agree that nothing in this Agreement alters the at-will
\nnature of Employee153s employment relationship with Gentiva and that either
\nEmployee or Gentiva may terminate the employment relationship at any time for
\nany reason. Employee further agrees that nothing in this Agreement limits
\nGentiva153s right to alter or modify Employee153s job title or job duties and
\nresponsibilities any time at Gentiva153s discretion.<\/p>\n

IN WITNESS WHEREOF, this Agreement has been entered into as of the date first
\nabove written.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

GENTIVA HEALTH SERVICES, INC.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Tony Strange<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Tony Strange<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Chief Executive Officer and President<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

\/s\/ Eric R. Slusser<\/p>\n<\/td>\n<\/tr>\n

\n

Eric R. Slusser<\/p>\n<\/td>\n<\/tr>\n

\n

As Employee<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

6<\/p>\n

\n

[ATTACHMENT 1 omitted by Findlaw]<\/p>\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table><\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7626],"corporate_contracts_industries":[9434],"corporate_contracts_types":[9539,9549],"class_list":["post-39892","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gentiva-health-services-inc","corporate_contracts_industries-health__home","corporate_contracts_types-compensation","corporate_contracts_types-compensation__noncompetition"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39892","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39892"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39892"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39892"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39892"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}