Exhibit 10.18(1)
NONCOMPETITION AGREEMENT
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This Noncompetition Agreement (the "Agreement") is made and entered into
this 13th day of May, 1996, by and between Xxxxxxx & Xxxxx, Incorporated, a
Missouri corporation (the "Company") and Xxx X. Xxxxx ("Shareholder").
RECITALS
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X. Xxxx Holdings, Inc. and its subsidiaries, including Pace
Industries, Inc. (the "Holdings Group"), are engaged in the business of
manufacturing aluminum die casting products and related tool and die products
(the "Business");
B. Pursuant to a Merger Agreement by and among the Company, Pace
Holdings, Inc., a Delaware corporation ("Holdings"), Pace Industries, Inc., an
Arkansas corporation ("Pace") and L&P Acquisition Company - 7, a Delaware
corporation ("L&P Sub"), the Company is acquiring all the outstanding equity
interests of Holdings;
C. Shareholder owns an equity interest in Holdings, and as a material
inducement to the Company to consummate the Merger Agreement and pay the Merger
Consideration, Shareholder has agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the above and other good and
valuable consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties hereto agree as follows:
1. Noncompetition Restrictions. Shareholder agrees that during the
period of five (5) years from the execution date of this Agreement (the
"Restricted Period"), Shareholder will not, directly or indirectly:
(a) engage or participate in any way, as an owner, officer,
partner, member, employee, agent, independent contractor, board member,
shareholder or otherwise, in any business activities competitive with or
directly related to the Business anywhere in North America (the "Territory");
(b) solicit or otherwise encourage any officer, employee, agent
or independent contractor of the Company to terminate or alter his or her
relationship with the Company or;
(c) disturb or interfere with, in any way, as an owner, officer,
partner, member, employee, agent, independent contractor, board member,
shareholder or otherwise, the business relationships relating to the Business
now existing or hereafter developed between the Holdings Group and any of its
customers
suppliers or other parties, or in any such capacity solicit orders from or
propose to do any business competitive to the Holdings Group with any customer
of the Holdings Group.
(d) Nothing in this Section 1 shall be construed to prevent
Shareholder from owning, as an investment, not more than five percent (5%) of a
class of equity securities issued by any competitor of the Holdings Group listed
on any national securities exchange or traded over the counter, provided
Shareholder has no other connection or relationship, direct or indirect, with
the issuer of such securities.
2. Confidentiality. Shareholder agrees to keep secret and confidential, and
not to use or disclose directly or indirectly to any third-parties, any of the
Holdings Group's proprietary trade secret information or other confidential
business information concerning the Holdings Group's Business. In addition to
any common law or statutory restrictions upon Shareholder's use, disclosure or
exploitation of confidential, proprietary or secret information of the Holdings
Group, Shareholder agrees that it, he or she will not, directly or indirectly,
use for himself or herself or use for, or disclose to, any party other than the
Company, any secret, proprietary or confidential information or data regarding
the Business, including, but no limited to, business or trade secrets, price
lists, methods, formulas, know-how, marketing plans, research and development
and financial information (collectively, the "Confidential Information").
3. Third Party Beneficiaries. Shareholder acknowledges and agrees that any
person or entity directly or indirectly controlling, controlled by or under
direct or indirect common control with the Company is a third party beneficiary
of this Agreement and shall have any and all rights as set forth in Section 5 of
this Agreement.
4. Non-Waiver of Rights. The Company's failure to enforce at any time any
of the provisions of this Agreement or to require at any time performance by
Shareholder or any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement,
or any part hereof, or the right of the Company thereafter to enforce each and
every provision in accordance with the terms of this Agreement.
5. Company's Right to Injunctive Relief. In the event of a breach or
threatened breach of any of duties and obligations of Shareholder under this
Agreement, the Company shall be entitled, in addition to any other legal or
equitable remedies the Company may have in connection therewith (including any
right to damages that the Company may suffer), to a temporary, preliminary
and/or permanent injunction restraining such breach or threatened breach.
Shareholder specifically agrees that, in the event there is a question as to the
enforceability of Section 1 hereof, Shareholder will not engage in any conduct
inconsistent with or contrary to that Section until after the question has been
resolved by an final judgment of a court of competent jurisdiction.
6. Invalidity of Provisions. In the event that any provision of this
agreement is adjudicated to be invalid or unenforceable under applicable law,
the validity or enforceability of the remaining provisions shall be unaffected.
To the extent that any provision of this Agreement is adjudicated to be invalid
or unenforceable because it is overbroad, that provision shall not be void but
rather shall be limited only to the extent required by applicable law and
enforced as so limited.
7. Assignment. This Agreement shall be freely assignable by the Company to,
and shall inure to the benefit of, any other corporate entity that shall succeed
to all or a portion of the Business presently being conducted by the Company.
8. Choice of Forum and Governing Law. This agreement shall be governed by
and construed in accordance with the laws of the State of Missouri.
9. Representations of Shareholder. Shareholder represents that the
execution and delivery of this Agreement do not violate any other contractual
obligation of Shareholder. Shareholder further agrees to defend, indemnify and
hold harmless the Company against all claims, demands, losses, damages or
expenses, including reasonable attorney's fees, suffered or incurred as a result
of any violation of its or his respective representations contained in this
Section 9.
10. Right to Recover Costs. Shareholder undertakes and agrees that if it or
he breaches or threatens to breach this Agreement, Shareholder shall be liable
for any attorneys' fees and costs incurred by the Company I enforcing its rights
hereunder.
11. Amendments. No modification, amendment or waiver of any of the
provisions of this Agreement shall be effective unless in writing specifically
referring hereto and signed by the parties hereto.
12. Tolling. Shareholder acknowledges and agrees that the running of the
time period in Section 1 shall be tolled with respect to Shareholder during any
period in which Shareholder violates that Section.
13. Rule of Construction. The rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in interpreting this Agreement.
14. Headings. Section headings are provided in this Agreement for
convenience only and shall not be deemed substantively alter the content of such
sections.
15. Counterparts. This Agreement may be executed simultaneously in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, SHAREHOLDER IS HEREBY CERTIFYING
THAT IT, HE OR SHE (A) RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY
BEFORE EXECUTING IT; (B) READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT; (C)
HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY QUESTIONS IT,
HE OR SHE HAD ABOUT THE AGREEMENT AND RECEIVED SATISFACTORY ANSWERS TO ALL SUCH
QUESTIONS; AND (D) UNDERSTANDS ITS OR HIS OR HER RIGHTS AND OBLIGATIONS UNDER
THIS AGREEMENT.
XXXXXXX & XXXXX, INCORPORATED
By: /s/ X.X. Xxxxxxxxx, Xx.
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Name: X.X. Xxxxxxxxx, Xx.
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Title: Senior Vice President
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SHAREHOLDER
/s/ Xxx X. Xxxxx
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Name
