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EXHIBIT 10.9
NON-COMPETITION AGREEMENT
This Non-Competition Agreement (the "AGREEMENT") is made and entered
into as of the 31 day of December, 1994, between Xxxxxx X. Xxxxx ("XXXXX") and
MMI Products, Inc., a Delaware corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, the Company is presently engaged in and intends to continue
engaging in the manufacture and marketing of welded wire fabric and drawn wire
and other activities in the United States of America (as such business is
conducted on the date hereof, the "WIRE MESH BUSINESS");
WHEREAS, the Company is also presently engaged in and intends to
continue engaging in the manufacture and marketing of bar supports and other
wire products for the concrete construction industry and other activities in
the United States of America (as such business is conducted on the date hereof,
the "CONCRETE ACCESSORIES BUSINESS");
WHEREAS, Xxxxx and the Company have entered into that certain Employment
Agreement (herein so called) of even date herewith;
WHEREAS, Xxxxx will have access to certain trade secrets and
confidential information (the "CONFIDENTIAL INFORMATION") of the Company and of
corporations affiliated with the Company, and the Confidential Information
constitutes valuable, special and unique property of the Company and such other
corporations;
WHEREAS, the Company will be irreparably harmed if the Confidential
Information is disclosed to any person or entity;
WHEREAS, the Company will be irreparably harmed if, within the period
set forth below, Xxxxx or any affiliate directly or indirectly competes with
the businesses engaged in by the Company (except as expressly permitted
herein); and
WHEREAS, in order to assure that Xxxxx will not benefit unfairly from
his association with the Company and that he will not undermine the value of
the stock of the Company's parent corporation, Merchants Metals Holding
Company, a Delaware corporation ("HOLDING") and the business of the Company,
the Company and the Company's shareholders who, together with Xxxxx and
Holding, are parties to a Shareholders' Agreement dated as of July 31, 1989,
require that Xxxxx be bound by certain non-competition covenants at the time he
ceases employment with the Company;
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
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1. Covenants.
(a) Disclosure of Information. Xxxxx will not, during or
after the term of his employment, disclose any of the Confidential Information
to any person or entity for any reason or purpose whatsoever, except as may be
required by law.
(b) Agreement Not to Compete. Following the termination of
his employment with the Company pursuant to Section 6 of the Employment
Agreement, Xxxxx agrees that for a period of two years neither he nor any
affiliate shall, either in his own behalf or as a partner, officer, director,
employee, agent or shareholder (other than as the holder of less than 5% of the
outstanding voting capital stock of any corporation with a class of equity
security registered under the Securities Act of 1934, as amended) engage in,
invest in or render services to any person or entity engaged in the Wire Mesh
Business, the Concrete Accessories Business, or any businesses in which the
Company is engaged at the date of termination and situated within any states of
the United States of America in which the Company has made sales during the 12
months immediately preceding termination ("COMPETITIVE BUSINESS"); provided
that if Xxxxx is terminated pursuant to Section 6.3 of the Employment
Agreement, the foregoing restriction will apply only for a period of one year,
plus the number of months that the Company elects at its sole option (which may
be zero but in no event greater than 12 months) to pay monthly severance
payments equal to Xxxxx' monthly Base Compensation to Xxxxx after the
expiration of such one-year period. Nothing contained in this Section shall be
construed as restricting Xxxxx' right to sell or otherwise dispose of any
business or investments owned or operated by Xxxxx as of the date of
termination.
(c) Agreement Not to Solicit Employees. Following the
termination of his employment with the Company, Xxxxx agrees that for a period
of two years neither he nor any affiliate shall, either alone or on behalf of
any business engaged in a Competitive Business, solicit or induce, or in any
manner attempt to solicit or induce, any person employed by, or any agent of,
the Company to terminate his contract of employment or agency, as the case may
be, with the Company (other than Xxxxx' secretary).
(d) The parties agree that the remedy at law for the breach of
any provision of this Section 1 will be inadequate and that, in addition to any
other remedies it may have in the event of breach, the company shall be
entitled to temporary and permanent injunctive relief to prevent Xxxxx'
continued breach of such provisions without the necessity of proving actual
damage. The covenants in this Agreement are independent, and the existence of
any claim or cause of action of Xxxxx or any of his affiliates against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement of this Agreement by the Company.
2. Integration. This Agreement represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof, and all other written or oral agreements relating to the
subject matter hereof are hereby superseded.
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3. Amendment; Waiver. No modification or amendment hereof shall be
valid and binding, unless it be in writing and signed by the parties hereto.
The waiver of any provision hereof shall be effective only in the specific
instance and for the particular purpose for which it was given. No failure to
exercise, and no delay in exercising, any right or power hereunder shall
operate as a waiver thereof.
4. Benefit; Assignment. This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and their respective successors
and assigns. The rights of the Company hereunder are assignable in whole or in
part to any person or entity that acquires the Wire Mesh Business or the
Concrete Accessories Business.
5. Reasonableness of Restrictions. Xxxxx has reviewed and carefully
considered the provisions of this Agreement with advice of counsel of his
choice and, having done so, agrees that the restrictions set forth herein are
fair and reasonably required for the protection of the interests of the
Company.
6. Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws effective
during the term of this Agreement, such provision shall be fully severable;
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement. Furthermore, in lieu of each such
illegal, invalid or unenforceable provision there shall be added automatically
as a part of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
7. Governing Law. This Agreement has been entered into in the State
of Texas and shall be construed in accordance with, and governed by, the laws
of the State of Texas excluding the conflicts of law rules of the State of
Texas.
8. Costs. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which it may be entitled.
9. Remedies Cumulative. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity
or by statute or otherwise. The election of any one or more remedies by any
party hereto shall not constitute a waiver of the right to pursue other
available remedies.
10. Affiliates. As used herein, the term "affiliate" means any
person or entity controlling, controlled by, or under common control with, the
subject person or entity.
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11. Multiple Counterparts. This Agreement may be executed in a
number of identical counterparts, each of which for all purposes will be deemed
an original, and all of which will constitute collectively, one Agreement; but
in making proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
12. Cumulative Rights. The rights of the parties under this
Agreement are cumulative and in addition to all similar and other rights of the
parties under other agreements between them, or among them and others.
13. Headings. The headings of the paragraphs of this Agreement have
been inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
14. Entire Agreement; Modification. This Agreement contains the
entire agreement between the parties and supersedes all prior agreements and
understandings, oral or written, with respect to the transactions contemplated
herein, including the Non-Competition Agreement dated December 13, 1988,
between Xxxxx and the Company's predecessor.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYER;
MMI PRODUCTS, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx
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Xxxxxx X. XxXxxxxxxx,
Director
EMPLOYEE:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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