NONCOMPETITION AGREEMENT
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THIS NONCOMPETITION AGREEMENT (this "Agreement"), is made and entered into
on this 1st day of November, 1996, by and among NWI WAREHOUSE GROUP, L.P., a
limited partnership formed under the laws of the State of Tennessee ("NWI") and
the Company (as herein defined).
W I T N E S S E T H:
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WHEREAS, on the date hereof, the Company is entering into a series of
related transactions pursuant to which it will acquire, and obtain the
contractual right to acquire, substantially all of the real estate and operating
assets of NWI;
WHEREAS, as a condition to the consummation of the transactions described
above, the parties hereto desire to enter into certain agreements restricting
the activities of NWI in an effort to eliminate potential conflicts of interest
that may arise in the future, to protect the Company's legitimate business
interests, i.e., the value of its business and its good will, and for other
business purposes.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein shall have the
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meanings set forth below:
"Affiliate" means (i) any entity directly or indirectly controlling,
controlled by, or under common control with NWI, and (ii) each other entity in
which NWI, directly or indirectly, owns any controlling interest or of which NWI
serves as a general partner.
"Agreement" means this Noncompetition Agreement, including any
amendments hereto made in accordance with Section 8(d) hereof.
"Company" means Weeks Corporation, a Georgia corporation, Weeks
Realty, L.P., a Georgia limited partnership, Weeks Realty Services, Inc., a
Georgia corporation, Weeks Construction Services, Inc, a Georgia corporation,
Weeks GP Holdings, Inc., a Georgia corporation, Weeks LP Holdings, Inc., a
Georgia corporation, and their respective successors.
"Effective Date" means the date as of which this Agreement is
executed.
"Industrial or Office Property" means any real property on which a
distribution facility, service center and/or office building development has
been constructed or is now or hereafter proposed to constructed (for example,
and not by way of limitation, a property of the type managed by the Company).
"Real Estate Activities" means those activities conducted by NWI,
including, without limitation, the acquisition, development, operation,
management, leasing, construction, or landscaping of an Industrial or Office
Property and activities substantially similar to those that NWI has performed
within the two years immediately prior hereto.
"Restricted Period" means from the Effective Date until March 31,
1998.
"Shares" means common stock, par value $.01 per share of Weeks
Corporation.
"Territory" means the standard metropolitan statistical area for
Nashville, Tennessee.
"Units" means the limited partnership interests of Weeks Realty, L.P.,
a Georgia limited partnership.
2. Noncompetition. NWI will not, during the Restricted Period and
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within the Territory, serve as partner of, or own any interest in, or engage in
any Real Estate Activities; provided, however, that notwithstanding the
foregoing (i) NWI may acquire an interest in any such entity so long as the
nature of any such interest does not afford NWI, acting alone or in concert with
any other person or persons the power to influence in any material fashion the
decision making processes of the entity in which such interest is held, (ii) NWI
may serve as a partner of Weeks Realty, L.P. and as a stockholder of the
Company, and (iii) NWI may enter into and discharge its obligations under those
Contribution Agreements (as defined in the Registration Rights and Lock-Up
Agreement dated as of the date hereof) between Weeks Realty, L.P. and NWI dated
as the date hereof, as well as any other agreement which is entered into by NWI,
or an affiliate of NWI, in connection with the acquisition by the Company of
NWI's assets.
3.(a) Antipirating of Employees. NWI will not, within the Territory
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and during the Restricted Period, employ or seek to employ on its own behalf or
on behalf of any other person, firm or corporation that engages, directly or
indirectly, in the acquisition, development, operation, management, leasing,
construction, or landscaping of an Industrial or Office Property, any person who
was employed as an employee by the Company in an executive, managerial, or
supervisory capacity.
(b) Nonsolicitation of Customers. NWI will not, within the Territory
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and during the Restricted Period, solicit or seek to solicit on its own behalf
or on behalf of any other person, firm or corporation that engages, directly or
indirectly, in the acquisition, development, operation,
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management, leasing, construction, or landscaping of an Industrial or Office
Property, any customer of the Company.
(c) Upon violation of this Section 3, NWI shall return to the Company
all documentation and other tangible materials in its possession containing
Trade Secrets or Confidential Information.
4. Reasonable and Necessary Restrictions. NWI acknowledges that the
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restrictions, prohibitions and other provisions hereof, including without
limitation the Territory and Restricted Period, are reasonable, fair and
equitable in scope, terms and duration, are necessary to protect the legitimate
business interests of the Company, and are a material inducement to the Company
to enter into the transactions contemplated in the recitals hereto. NWI
covenants that it will not challenge the enforceability of this Agreement nor
will it raise any equitable defense to its enforcement.
5. Restrictions In Addition to Other Agreements. NWI acknowledges
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that the restrictions, prohibitions and other provisions hereof shall be in
addition to and not in substitution of the restrictions, prohibitions and other
provisions of certain other agreements executed between the parties hereto, as
such agreements shall be amended and supplemented from time to time.
6. Specific Performance. NWI acknowledges that the obligations
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undertaken by it pursuant to this Agreement are unique and that the Company
likely will have no adequate remedy at law if NWI shall fail to perform any of
its obligations hereunder, and NWI therefore confirms that the Company's right
to specific performance of the terms of this Agreement is essential to protect
the rights and interests of the Company. Accordingly, in addition to any other
remedies that the Company may have at law or in equity, the Company shall have
the right to have all obligations, covenants, agreements and other provisions of
this Agreement specifically performed by NWI, and the Company shall have the
right to obtain preliminary and permanent injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement by
NWI, and NWI submits to the jurisdiction of the courts of the State of Tennessee
for this purpose.
7. Operations of Affiliates. In addition to and without in any way
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limiting any of the other provisions of this Agreement, NWI agrees that it will
refrain from authorizing any Affiliate to perform any activities that would be
prohibited by the terms of this Agreement if they were performed by NWI.
Notwithstanding anything to the contrary contained in this Section 7 (or in any
other section of this Agreement), NWI shall not be required by the terms of this
Agreement to violate any fiduciary or contractual duty it owes as a partner of a
partnership, as a trustee of a trust, or as a controlling person, manager or
fiduciary of any other person or entity.
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8. Miscellaneous Provisions.
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(a) Binding Effect. Subject to any provisions hereof restricting
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assignment, all covenants and agreements in this Agreement by or on behalf of
any of the parties hereto shall bind and inure to the benefit of their
respective successors, assigns, heirs, and personal representatives. None of the
parties hereto may assign any of its rights under this Agreement or attempt to
have any other person or entity assume any of its obligations hereunder.
(b) Severability. If fulfillment of any provision of this Agreement,
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at the time such fulfillment shall be due, shall transcend the limit of validity
prescribed by law, then the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision contained in this
Agreement operates or would operate to invalidate this Agreement, in whole or in
part, then such clause or provision only shall be held ineffective to the extent
of such invalidity, as though not herein contained, and the remainder of this
Agreement shall remain operative and in full force and effect.
(c) Governing Law. This Agreement, the rights and obligations of the
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parties hereto, and any claims or disputes relating thereto shall be governed by
and construed in accordance with the laws of the State of Tennessee, not
including the choice-of-law rules thereof.
(d) Amendment; Waiver. Except as otherwise expressly provided in
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this Agreement, no amendment, modification or discharge of this Agreement shall
be valid or binding unless set forth in writing and duly executed by each of the
parties hereto. Any waiver by any party or consent by any party to any variation
from any provision of this Agreement shall be valid only if in writing and only
in the specific instance in which it is given, and such waiver or consent shall
not be construed as a waiver of any other provision or as a consent with respect
to any similar instance or circumstance.
(e) Headings. Section and subsection headings contained in this
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Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
(f) Pronouns. All pronouns and any variations thereof shall be
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deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
(g) Arbitration. If a dispute arises between the parties, then the
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parties agree that their respective representatives shall meet and consult in
good faith and attempt to settle the dispute, within thirty (30) days of written
notice thereof, as a condition precedent to the initiation of arbitration
proceedings as set forth below.
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Any dispute, controversy, or claim arising out of or relating to this
Agreement, the breach, termination or invalidity thereof, or NWI's
noncompetition obligations, including claims of tortious interference or other
tort or statutory claims, and including without limitation any dispute
concerning the scope of this arbitration clause, shall be settled by arbitration
in accordance with the Employment Dispute Arbitration Rules of the American
Arbitrators Association then in effect. The judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitration under this Agreement shall be held in Nashville, Tennessee, or at
such other place as may be selected by mutual agreement of the parties.
The arbitrator shall be mutually acceptable to the parties, or failing
agreement, selected pursuant to the Employment Dispute Arbitration Rules of the
American Arbitrators Association. The parties intend that the arbitrator shall
be independent and impartial. To this end, the arbitrator shall disclose to the
parties any professional, family, or social relationships, past or present, with
any party or counsel.
Strict rules of evidence shall not apply in any arbitration conducted
pursuant to this Agreement. The parties may offer such evidence as they desire
and the arbitrator shall accept such evidence as the arbitrator deems relevant
to the issues and accord it such weight as the arbitrator deems appropriate. The
arbitrator shall have the discretion to order a prehearing exchange of
information by the parties, including without limitation, production of
requested documents, exchange of summaries of testimony of proposed witnesses,
and examination by deposition of parties. No party shall be allowed, however, to
take more than one deposition of the opposing party and no deposition shall last
longer than six (6) hours. All disputes regarding discovery shall be decided by
the arbitrator.
The arbitrator award shall be in writing and shall specify the factual and
legal bases for the award. In rendering the award, the arbitrator shall
determine the respective rights and obligations of the parties according to the
laws of the State of Tennessee or, if applicable, federal law. The arbitrator
shall have the authority to award any remedy or relief that a federal or state
court within the State of Tennessee could order or grant.
Any provisional remedy that would be available from a court of law shall be
available from the arbitrator to the parties, pending the arbitrator's
determination of the merits of the parties' dispute. This shall include orders
of attachment, temporary restraining orders, injunctions, and appointment of a
receiver. If the arbitrator issues such an order, either party may immediately
apply to a court of competent jurisdiction for enforcement of the order, even
though the arbitrator may not have rendered a final award.
All fees and expenses of the arbitration, including the fees of the
arbitrator and the expense of each parties' counsel, experts, witnesses and
preparation and presentation of proofs, shall be paid by Company.
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Unless legally required to do so, neither party may disclose the existence,
content, or results of any arbitration under this Agreement without the prior
written consent of the other party, nor may the arbitrator disclose any such
information without the consent of both parties. This provision shall apply to
all aspects of the arbitration proceeding, including without limitation,
discovery, testimony, other evidence, briefs, and the award.
It is the specific intent of the parties that this arbitration clause be
governed by the Federal Arbitration Act, 9 U.S.C. Section 1 et. seq. ("FAA");
however, if this cause is unenforceable for any reason under the FAA, then the
parties intend that it be governed by the provisions of Tenn. Code Xxx. Sections
29-5-30 through 29-5-320.
Both NWI and Company represent and warrant they have read the foregoing
Section 8(g), that they have had an opportunity to consult with and receive
advice from legal counsel regarding the foregoing Section 8(g), and that they
hereby forever waive all rights to assert that this Section 8(g) was the result
of duress, coercion, or mistake of law or fact.
_____ _____ (Initial of both parties in each space).
(h) Execution in Counterparts. This Agreement may be executed in two
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or more counterparts, none of which need contain the signatures of all parties
hereto and each of which shall be deemed an original.
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement, or
caused this Agreement to be duly executed on its behalf, as of the date first
set forth above.
WEEKS CORPORATION
By:____________________________________
Title:______________________________
WEEKS REALTY, L.P.
By: Weeks GP Holdings, Inc., its
sole General Partner
By:____________________________________
Title:______________________________
WEEKS REALTY SERVICES, INC.
By:____________________________________
Title:______________________________
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WEEKS CONSTRUCTION SERVICES, INC.
By:____________________________________
Title:______________________________
WEEKS GP HOLDINGS, INC.
By:____________________________________
Title:______________________________
WEEKS LP HOLDINGS, INC.
By:____________________________________
Title:______________________________
NWI WAREHOUSE GROUP, L.P.
By: NWI X, L.P., its Sole General Partner
By: _______________________
Xxxx X. Xxxxxx, Xx.,
General Partner
By: _______________________
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
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