NONCOMPETITION AGREEMENT
This Noncompetition Agreement ("Agreement"), effective as of the
Effective Date, as defined below, is made by and between Swift Transportation
Co., Inc., or its assignees ("Swift") and Direct Transit, Inc. ("DTI").
WHEREAS, DTI, an Iowa corporation, engaged in the motor carrier
business, concurrent with the execution of this Agreement, has entered into an
Asset Purchase Agreement with Swift dated February 20, 1997 (the "Purchase
Agreement"), under which Swift will acquire certain assets of DTI, including
good will, customer lists, and customer contracts (the "Assets");
WHEREAS, the value of the Assets to Swift would be substantially
diminished if DTI were free to compete with Swift or assist others in
competition with Swift once the purchase of the Assets is completed; and
WHEREAS, Swift has required this Agreement as a condition to
performance to its obligations under the Purchase Agreement.
NOW, THEREFORE, in consideration of the above recitals and the
following covenants, the parties hereby agree as follows:
1. Term. This Agreement shall commence on the Effective Date, as
defined below, and shall continue for eight (8) years thereafter, unless
terminated earlier as provided elsewhere in this Agreement.
2. Effective Date. This Agreement shall not become effective until the
Closing Date of the Purchase Agreement, and it is contingent upon the closing of
such transaction.
3. Consideration. As complete consideration for the obligations of DTI
under this Agreement, DTI will receive upon the Effective Date, the sum of One
Hundred Thousand Dollars ($100,000) which is part of the Purchase Price to be
paid for the Assets under the Purchase Agreement.
4. Noncompetition. DTI shall not, at any time within the period
commencing on the Effective Date and ending on the eighth anniversary
thereafter, directly or indirectly, or by affiliation with any person, firm,
corporation, entity or business (whether as a partner, officer, director, agent,
consultant or otherwise); (a) engage in the business of providing motor carrier
or transportation logistics services from any location within the geographical
United States or the soliciting of customers using such services within the
United States, regardless of whether those customers may be located; (b) solicit
or receive any such business from any customer or prospect of DTI existing as of
the Closing Date of the Purchase Agreement; or (c) hire any person
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employed by Swift on or after the Effective Date or induce any such person to
leave the employ of Swift.
DTI shall not at any time or at any place, divulge,
communicate, use to the detriment of Swift or for the benefit of any other
person or persons, or misuse in any way, any confidential information, trade
secrets or other nonpublic information about or effecting DTI's business.
5. Governing Law and Jurisdiction. This Agreement shall be governed by
and interpreted and enforced in accordance with the laws of the State of
Arizona. DTI consents to the jurisdiction and venue of any state or federal
court located in Maricopa County, Arizona, with respect to any action, either in
tort or contract, arising from this Agreement.
6. Default and Remedies. In the event that DTI breaches this Agreement
and fails to cure such breach within ten days after written notice thereof is
given to DTI, Swift may, at its option, seek monetary damages and/or obtain
injunctive or other equitable relief to prevent the further breach of this
Agreement.
7. Attorney's Fees. In the event that suit is brought in order to
enforce any provision of this Agreement, the prevailing party shall be entitled
to recover their costs and reasonable attorneys fees incurred in enforcing this
Agreement.
8. Notice. All notices under this Agreement shall be sent in the same
manner as provided in Section 8.8 of the Asset Purchase Agreement to the
addresses of the parties set forth in the Asset Purchase Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the date set forth below.
DIRECT TRANSIT, INC. SWIFT TRANSPORTATION CO., INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx III
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Title: Vice President Title: Executive Vice President
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Date: 4/8/97 Date: 4/8/97
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