This NonDisclosure Agreement NDA involves
Title: NON-COMPETITION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT
Governing Law: Texas Date: 1/6/2011
Industry: Business Services Sector: Services
AND NON-SOLICITATION AGREEMENT
This Non-Competition, Non-Disclosure and Non-Solicitation Agreement (“Agreement”), dated this _______ day of December 2010 (the “Effective Date”), by and between ___________________________________ (“Holder”) and Piper Acquisition III, Inc. , a Nevada corporation (the “Purchaser”).
A. Pursuant to the Contribution Agreement by and among the Purchaser, First Street Hospital, L.P. (“Hospital”), First Surgical Woodlands, L.P. (“Woodlands”), First Street Surgical Center, L.P. (“Surgical Center”), First Surgical Partners, L.L.C. (“Partners” and together with Hospital, Woodlands and Surgical Center, the “Entities”) the Purchaser is acquiring the Entities and the Holder is acquiring shares of common stock of Purchaser (the “Contribution Agreement”).
B. Holder has been a partner in one or more of the Entities for many years and has developed and received special, unique and extraordinary knowledge, information and goodwill in connection therewith.
C. It is a condition precedent to the consummation of the transactions contemplated by the Contribution Agreement, and an inducement to the Purchaser to enter into the Contribution Agreement and effect the purchase of the Entities and their respective businesses thereunder and the goodwill represented thereby, that the parties hereto execute and deliver this Agreement.
D. Capitalized terms used in this Agreement and not otherwise defined shall have the meanings assigned to them in the Contribution Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Non-Competition; Non-Solicitation . Commencing on the date hereof and ending on the last day of the Restricted Period (as defined below), Holder covenants and agrees that he will not, without the Purchaser’s prior written consent, directly or indirectly, either on behalf of himself or on behalf of any business venture, as an employee, consultant, partner, principal, stockholder, officer, director, trustee, agent, or otherwise (other than on behalf of the Purchaser or its Affiliates):
(A) be employed by, engage or participate in the ownership, management, operation or control of, or act in any advisory, expert, consulting or other capacity for, any entity or individual that owns, operates, manages or controls a medical facility (the “Competing Facility”) that competes with the Purchaser or its Affiliates and that is located in a county in which one of Purchaser’s or Purchaser’s Affiliate’s facilities is located or a county immediately adjacent to a county in which one of Purchaser’s or Purchaser’s Affiliate’s facilities is located;
(B) solicit or divert any business or any customer from the Purchaser or its Affiliates or assist any person, firm, corporation or other entity in doing so or attempting to do so;
(C) cause or seek to cause any person, firm or corporation to refrain from dealing or doing business with the Purchaser or its Affiliates or assist any person, firm, corporation or other entity in doing so; or
(D) hire, solicit or divert from the Purchaser or its Affiliates any of their respective employees, consultants or agents who have, at any time during the immediately preceding one (1) year period from the date hereof or during the Restricted Period, been engaged by the Purchaser or its Affiliates, nor assist any person, firm, corporation or other entity in doing so.
Non-Competition, Non-Disclosure and Non-Solicitation Agreement
As used in this Agreement, the term “Affiliates” shall mean any entity controlling, controlled by or under the common control of the Purchaser. For the purpose of this Agreement, “control” shall mean the direct or indirect ownership of thirty (30%) percent or more of the outstanding shares or other voting rights of an entity or possession, directly or indirectly, of the power to direct or cause the direction of management and policies of an entity.
As used in this Agreement, “Restricted Period” means the period commencing on the date hereof and ending two (2) years from the date that the Holder ceases to be a shareholder of the Company or its successors.
2. Nondisclosure . Holder understands and agrees that the business of the Purchaser and its Affiliates is based upon specialized work and Confidential Information (as hereinafter defined). Holder agrees that during the Restricted Period, he shall keep secret all such Confidential Information and that he will not, directly or indirectly, use for his own benefit or for the benefit of others nor Disclose (as hereinafter defined), without the prior written consent of the Purchaser, any Confidential Information. At any time upon the Purchaser’s request, Holder shall turn over to the Purchaser all books, notes, memoranda, manuals, notebooks, records and other documents made, compiled by, delivered to, or in the possession or control of Holder containing or concerning any Confidential Information, including all copies thereof, in any form or format, including any computer hard disks, wherever located, containing any such information, it being agreed that the same and all information contained therein are at all times the exclusive property of the Purchaser and its Affiliates.
As used in this Agreement, the term “Confidential Information” means any information or compilation of information not generally known to the public or the industry, that is proprietary or confidential to the Purchaser, its Affiliates and/or those doing business with the Purchaser and/or its Affiliates, including but not limited to know-how, process, techniques, methods, plans, specifications, trade secrets, patents, copyrights, supplier lists, customer lists, mailing lists, financial information, business plans and/or policies, methods of operation, sales and marketing plans and any other information acquired or developed by Holder in the course of his past, present and future dealings with the Purchaser and its Affiliates, which is not readily available to the public.
“Confidential Information” does not include any information, datum or fact: (a) currently available to the public as of the date hereof; (b) after it becomes available to the public other than as a result of a breach hereof or other wrongful conduct by Holder; (c) after it becomes available to Holder on a non-confidential basis from a source other than the Company or its Affiliates or a person or entity breaching his or its confidentiality agreement or other r