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EXHIBIT 10.1.3
NON-COMPETITION AGREEMENT
This Non-Competition Agreement (the "Agreement") is made and entered into
this 1st day of September, 1997 by and between Xxxxxxx Pest Control Corp. (the
"Company") and Xxxxxx X. XxXxxx, Xx. (the "Executive").
WHEREAS, Executive has accepted employment with Xxxxxxx in connection with
that certain Asset Purchase Agreement of even date herewith; and
WHEREAS, during his employment with Xxxxxxx, Executive shall receive
valuable proprietary information of Xxxxxxx;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the parties agree as follows:
1. The Executive hereby recognizes and acknowledges that during the
course of his employment by the Company, the Company has disclosed and will
furnish, disclose, or make available to the Executive confidential and
proprietary information related to the Company's business including, without
limitation, customer lists, financial information, ideas, processes, inventions,
and devices (the "Confidential Information"), that such Confidential Information
has been developed and will be developed through the expenditure by the Company
of substantial time and money and that all such Confidential Information, except
to the extent it is in the public domain, shall constitute trade secrets
protected under applicable law. The Executive further agrees to use such
Confidential Information only for the purpose of carrying out his duties with
the Company and agrees that he will not, after his last day of employment with
the Company, misappropriate for himself or others or disclose to any third
party, either directly or indirectly, any Confidential Information. It is
expressly understood that Executive shall not be in breach of this Agreement for
any disclosure he is required to make by virtue of a final unappealable order of
a court of competent jurisdiction. It is further expressly agreed that Executive
shall return to the Company at the time of termination and not retain any
property belonging to the Company, including, without limitation, any and all
originals and copies of documents referencing or containing any Confidential
Information.
2. The Executive hereby agrees that for a period of thirty-six (36)
months, following his last day of employment by the Company, Executive shall
not, without the written consent of the Company, solicit, entice, or persuade
any other employees of the Company or any affiliate of the Company to leave the
services of the Company or such affiliate for any reason.
3. It is the intention of the parties to create a nationwide chain of
quality termite and pest control operations. Company has expended and will
continue to expend considerable sums to further the development of the chain.
Executive possesses the knowledge, skills and expertise necessary to further
development of the chain. The Executive agrees that during the course of his
employment with the Company, he will not enter into any relationship whatsoever,
either directly or indirectly, alone or in a partnership, or as an officer,
director,
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employee or stockholder of any corporation or other business entity (other than
the Company), or otherwise acquire or agree to acquire a significant present or
future equity or other proprietorship interest, whether as a stockholder,
partner, proprietor, or otherwise, with any enterprise, business, or division
thereof (other than the Company), which is engaged in a business or businesses
similar to those engaged in by the Company and (i) for a period of twelve (12)
months in those DMA's within the United States in which the Company is
conducting business at the time of Executive's proposed new employment and (ii)
for a period of twenty-four (24) months within the states of North Carolina and
South Carolina and neither actively nor as an investor in Union County, North
Carolina and a fifty (50) mile radius around Union County, unless as an investor
in a Xxxxxxx Pest Control franchise. For purposes of this Agreement, "DMA" means
Designated Market Area as determined by the X. X. Xxxxxxx Company from time to
time; provided that, this covenant shall be void and of no further force and
effect if the Company defaults (beyond any cure period) in any payments due and
payable under that certain Installment Promissory Note of even date herewith
payable to Carolina Termite & Pest Control, Inc. or pursuant to this covenant
not to compete.
4. The Executive acknowledges that the restrictions placed upon him by
this Agreement are reasonable, given the nature of his position, and that there
is sufficient consideration promised him pursuant to this Agreement to support
these restrictions.
5. The restrictions of this Agreement shall survive Executive's last
day of employment by the Company and shall be in addition to any restrictions
imposed upon the Executive by statute or at common law.
6. In consideration of the covenant not to compete provided in this
Agreement Company agrees to pay Employee a total of Three Hundred Sixty Seven
Thousand Three Hundred Ninety Four and 00/l00 Dollars ($367,394.00). Payment
shall be made as follows: One Hundred Thousand and 00/l00 Dollars ($100,000.00)
at Closing as defined in the Asset Purchase Agreement. Monthly installment
payments in the amount of Four Thousand Four Hundred Fifty Six and 57/100
Dollars ($4,456.57) commencing October 1, 1997 until fully paid. The obligation
to make the payments required under this Section 6 shall survive the termination
(but not the breach) of this Agreement and the death of the Executive.
7. The Executive hereby expressly acknowledges that any breach or
threatened breach by the Executive of any of the terms set forth in Section 3 of
this Agreement may result in significant and continuing injury to the Company,
the monetary value of which may be impossible to establish. Therefore, the
Executive agrees that the Company shall be entitled to apply for injunctive
relief in North Carolina or any other court of appropriate jurisdiction. The
provisions of this Section 7 shall survive the Employment Term.
8. This Agreement shall be binding upon the Executive, the heirs and
personal representative or representatives of the Executive and upon the Company
and its successors and assigns. Neither this Agreement nor any rights or
obligations hereunder may be assigned by the Executive.
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9. Any notice required or permitted by this Agreement shall be in
writing, sent by personal delivery, or by registered or certified mail, return
receipt requested, addressed to Executive's immediate supervisor and the Company
at its then principal office, or to the Executive at his then current address,
as the case may be, or to such other address or addresses as any party hereto
may from time to time specify in writing for the purpose of a notice given to
the other party in compliance with this Section 9. Notices shall be deemed given
when received.
10. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of North Carolina without regard to
conflict of law principles and the parties agree to submit themselves to the
jurisdiction of the federal or state courts of the State of North Carolina for
any claim arising under this Agreement which is brought by the other party in
North Carolina.
11. Except insofar as Company elects at any time to enforce this
Agreement by any judicial process, injunction or specific performance, any
controversy, dispute, question or claim arising out of or relating to this
Agreement or its interpretation, performance, or non-performance, or any breach
hereof, including, without limitation, any claim that this Agreement or any part
thereof is invalid, illegal or otherwise voidable or void, shall be submitted to
final and binding arbitration process in accordance with the Rules of the
American Arbitration Association. Judgment on the arbitration award may be
entered in the highest state court in the State of North Carolina having
jurisdiction thereof, provided, however that this provision shall not construed
to limit any rights which Company may have to apply to any court of competent
jurisdiction for injunctive or similar provisional relief. The substantive law
of the State of North Carolina shall be applied by the arbitrators and this
requirement shall be deemed jurisdictional. This arbitration provision shall be
deemed self-executing, and in the event that any party fails to appear at any
properly noticed arbitration proceeding, an award may be entered against such
party notwithstanding said failure to appear. The parties agree that such
arbitration shall be conducted in Charlotte, North Carolina and shall remain
confidential between the parties except as required by law. Any dollar judgment
against Company shall not provide for punitive or exemplary damages.
12. This Agreement contains the entire agreement of the parties
relating to the subject matter hereof. This Agreement supersedes any prior
written or oral agreements or understandings between the parties relating to the
employment of Executive, the compensation or benefits promised to Executive or
any other agreement or understanding relating in any way to the subject matter
in this Agreement. No modification or amendment of this Agreement shall be valid
unless in writing and signed by or on behalf of the parties hereto. A waiver of
the breach of any term or condition of this Agreement shall not be deemed to
constitute a waiver of any subsequent breach of the same or any other term or
condition. This Agreement is intended to be performed in accordance with, and
only to the extent permitted by, all applicable laws, ordinances, rules and
regulations. If any provision of this Agreement, or the application thereof to
any person or circumstance, shall, for any reason and to any extent, be held
invalid or unenforceable, such invalidity and unenforceable shall not affect the
remaining provisions hereof
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and the application of such provisions to other persons or circumstances, all of
which shall be enforced to the greatest extent permitted by law. The
compensation provided to the Executive pursuant to this Agreement shall be
subject to any withholding and deductions required by any applicable tax laws.
Any amounts payable to the Executive hereunder after the death of the Executive
shall be paid to the Executive's estate or legal representative.
IN WITNESS WHEREOF the parties have duly executed and delivered this
Agreement as of the day and year first above written.
XXXXXXX PEST CONTROL CORP.
By:
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President
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Xxxxxx X. XxXxxx, Xx.
GUARANTY
FOR VALUE RECEIVED, the undersigned hereby unconditionally guarantees the
payment required by this Agreement when due, and hereby waives (i) notice of
acceptance hereof and of any defaults of the Maker in the making of any such
payment and (ii) any presentiment, demand, protest or notice of any kind. The
undersigned hereby agrees that said Agreement- may be modified, amended and
supplemented in any manner, including the renewal or extension of any kind of
said Agreement, without their consent, and that no such modification, amendment,
supplement, renewal or extension and no invalidity of said agreement shall
release, affect or impair the liability of the undersigned hereunder.
XXXXXXX INTERNATIONAL, INC.
By:
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President & Chief Executive Officer
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