Exhibit 10.26
EXECUTIVE NON-SOLICITATION,
NON-COMPETITION
AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT dated as of
October 26, 2009 by and between Gentiva Health Services, Inc.,
a Delaware corporation (“Gentiva”), and Eric R. Slusser
(“Employee”).
W I T N E S S E T H
:
WHEREAS, Employee acknowledges that
Gentiva is engaged in the highly competitive business of providing
home healthcare services and that Employee has job responsibilities
covering the areas in and around the locations listed in Attachment
1 to this Agreement. Gentiva’s engagement in this business
has involved and continues to involve the expenditure of
substantial amounts of money and the use of skills developed over a
long period of time. As a result of these investments of money,
skill and time, Gentiva has developed and will continue to develop
certain valuable Trade Secrets and Confidential Information that
are peculiar to Gentiva’s business and the disclosure of
which would cause Gentiva great and irreparable harm. Gentiva has
also invested a great deal of time and money in developing
relationships with its employees, patients and referral
sources;
WHEREAS, Employee acknowledges that
in rendering services to Gentiva, Employee will be exposed to and
learn much information about Gentiva’s business, including
valuable Confidential Information and Trade Secrets, which Employee
would not have access to if not for Employee’s employment
with Gentiva and which it would be unfair to disclose to others, or
to use to Gentiva’s disadvantage;
WHEREAS, Employee acknowledges that
the restrictions contained in this Agreement are necessary and
reasonable to protect Gentiva’s legitimate business interests
in its Trade Secrets, valuable Confidential Information,
relationships with its employees and relationships and goodwill
with its patients and referral sources; and
WHEREAS, Employee acknowledges that
Employee’s skills, education and training qualify Employee to
work and obtain employment which does not violate this Agreement
and that the restrictions in this Agreement have been crafted as
narrowly as reasonably possible to protect Gentiva’s
legitimate business interests in its Trade Secrets, valuable
Confidential Information, relationships with its employees and
relationships and good will with its patients and referral
sources.
NOW, THEREFORE, in consideration of
the mutual promises and obligations in this Agreement, including
but not limited to, Gentiva’s employing or continuing to
employ Employee as an at-will employee, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, Gentiva and Employee agree as
follows:
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1.
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Non-Solicitation of Patients and Referral
Sources
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Employee agrees that during
Employee’s employment with Gentiva and for a period of one
(1) year after termination of Employee’s employment with
Gentiva for any reason, except on behalf of Gentiva, Employee will
not directly or indirectly solicit, contact, call upon, communicate
with or attempt to communicate with any patient or referral source
of Gentiva for the purpose of providing home healthcare services.
This restriction shall apply only to any patient or referral source
of Gentiva with whom Employee had Material Contact during the last
twelve months of Employee’s employment with Gentiva.
“Material Contact” for purposes of this Section 1
means contact between Employee and the patient for the purpose of
furthering the patient’s healthcare or contact between
Employee and the referral source for the purpose of furthering the
referral relationship.
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2.
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Non-Solicitation of Employees
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Employee agrees that during
Employee’s employment with Gentiva and for a period of one
(1) year after termination of Employee’s employment with
Gentiva for any reason, Employee will not recruit, hire or attempt
to recruit or hire, directly or by assisting others, any other
employee of Gentiva with whom Employee had Material Contact during
Employee’s employment with Gentiva. “Material
Contact” for the purposes of this Section 2 means
contact between Employee and the other employee of Gentiva for the
purpose of furthering Gentiva’s business.
Employee agrees that during
Employee’s employment with Gentiva and for a period of one
(1) year after termination of Employee’s employment with
Gentiva for any reason, except on behalf of Gentiva, Employee shall
not, on Employee’s own behalf or on another’s behalf,
(i) work in a financial or management capacity in the business
of providing home healthcare services or (ii) own, operate,
control or provide services or financial assistance to any business
providing home healthcare services, except that Employee may own
for investment purposes only up to 1% of the capital stock of any
such business whose stock is publicly traded. These restrictions
shall apply only within a 25 mile radius of Employee’s
primary place of employment with Gentiva located at 3350 Riverwood
Parkway, Atlanta, Georgia and a 15 mile radius of each Gentiva
location listed in Attachment 1 to this Agreement. Employee agrees
that because of the nature of Gentiva’s business, the nature
of Employee’s job responsibilities, and the nature of
the
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Confidential Information and Trade
Secrets of Gentiva to which Gentiva will give Employee access, any
breach of this provision by Employee would result in the inevitable
disclosure of Gentiva’s Trade Secrets and Confidential
Information to its direct competitors.
A. During
Employee’s employment with Gentiva and at any time after the
termination of Employee’s employment with Gentiva for any
reason, Employee will not publish or disclose, use for
Employee’s own benefit or the benefit of others, or divulge
or convey to others, any Trade Secrets of Gentiva or that of third
parties obtained by Employee in the course of Employee’s
employment with Gentiva. “Trade Secret” means any and
all information, knowledge or data in any form whatsoever, tangible
or intangible, that is considered a trade secret under applicable
law. This promise of confide
