Exhibit 10(aa)
NON-COMPETITION AGREEMENT made as of this 16th day of March, 1998 by and
among CANTEL INDUSTRIES, INC., a Delaware corporation, maintaining its
principal offices at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxxxx 00000
("Purchaser") and XXXXXXXXXXX X. XXXX and BONOLYN X. XXXX, residing at 00000
0xx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 (collectively, the "Stockholders")
RECITALS:
A. Purchaser and Xxxxx Xxxx Medical, Inc., a California corporation
("Seller") have entered into an Asset Purchase Agreement of even date
herewith (the "Purchase Agreement") providing for, among other things, the
sale of all or substantially all of the assets of Seller to Purchaser in
accordance with the terms and conditions set forth in the Purchase Agreement.
Unless otherwise defined herein, capitalized terms used herein shall have the
respective meanings assigned to them in the Purchase Agreement.
B. The Stockholders, who own one hundred (100%) percent of the issued
and outstanding stock of Seller, have agreed as an inducement and condition
to Purchaser entering into the Purchase Agreement, to enter into this
Non-competition Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Non-Competition and Confidentiality Covenant. In consideration of
the sum of $60,000 and other good and valuable consideration paid by
Purchaser to the Stockholders, receipt of which is hereby acknowledged,
Stockholders covenant and agree that for a period ending five years after the
Closing Date, he or she shall not anywhere in the United States, Canada or
another country where Purchaser or any of its Subsidiaries is then conducting
business, directly or indirectly, as owner, partner, joint venturer,
stockholder, broker, agent, principal, trustee, licensor, or in any other
capacity whatsoever (as applicable) (i) engage in, become financially
interested in, be employed by, render any consultation or business advice to,
or have any connection with, any Person engaged in a similar business to, or
which is otherwise competitive with, the Business, (ii) interfere with,
disrupt or attempt to disrupt any then existing relationship, contractual or
otherwise, with Purchaser (or any of its Subsidiaries) and any of their
respective customers, suppliers, employees, agents or other Persons with whom
it deals, (iii) solicit for employment, attempt to employ or assist any other
Person in employing or soliciting for employment any employee or executive
who is at that time, or was at any time
during the preceding year, employed by Purchaser (or any of its
Subsidiaries), (iv) influence or attempt to influence any of the customers of
Purchaser (or any of its subsidiaries) (including without limitation
customers who prior to the Closing were customers of Seller) to transfer
their patronage from Purchaser (or any of its Subsidiaries) to any other
Person or (v) solicit business from any customers to whom Purchaser (or any
of its Subsidiaries) is then furnishing products or services or to whom
Seller has furnished products or services during the two-year period
immediately preceding the Closing Date, or from any prospective customers who
are currently or are then being actively solicited by Purchaser (or any of
its Subsidiaries). The Stockholders shall not, without the previous written
consent of Purchaser, from and after the Closing, divulge, furnish or make
available to any third party any financial information or other information
with respect to the Business or Purchaser (or any of its Subsidiaries), other
than to its professional advisors, or as compelled by law or any applicable
rule or policy of any securities commission, stock exchange or like body.
2. Equitable Relief. Each of the Stockholders agrees that the remedy at
law for any breach of the covenants contained in Section 1 above would be
difficult to ascertain and therefore, in the event of breach or threatened
breach of any such covenants, Purchaser and its Subsidiaries, in addition to
any other remedy, shall each have the right to enjoin each of the
Stockholders from any threatened or actual activities in violation thereof
and each of the Stockholders hereby consents and agrees that temporary and
permanent injunctive relief may be granted in any proceedings which may be
brought to enforce any such covenants without the necessity of proof of
actual damages. If any portion of the restrictions set forth in Section 1
above should, for any reason whatsoever, be declared invalid by a court of
competent jurisdiction, the validity or enforceability of the remainder of
such restrictions shall not thereby be adversely affected. Each of the
Stockholders declares that the territorial and time limitations set forth in
Section 1 above are reasonable and properly required for the adequate
protection of the Business being purchased by Purchaser. In the event any
such territorial or time limitation is deemed to be unreasonable by a court
of competent jurisdiction, the parties agree to the reduction of the
territorial or time limitation to the area or period which such court shall
deem reasonable.
3. Notices.
a. All notices required to be given under the terms of this
Agreement or which any of the parties may desire to give hereunder shall be
in writing and delivered personally or sent by registered or certified mail,
postage prepaid, addressed
as follows:
b. As to Purchaser, addressed to it, 0000 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X. Xxxxxx, or such other address
or addresses and to the attention of such other Person or Persons as
Purchaser may from time to time designate in writing to Seller, with copies
thereof addressed to Xxxx X. Xxxxxx, Esq., Xxxxxxxx Xxxxxx Xxxxxxxxxx &
Xxxxxxxxx, XXX, Xxx Xxxx, Xxx Xxxx 00000.
c. As to the Stockholders, addressed to them, 00000 0xx Xxxxxx,
Xxxxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxxxxx X. Xxxx or to such
other address or to such other Persons as Seller may from time to time
designate in writing to Purchaser, with copies thereof addressed to Xxx
Xxxxxx, Esq., Xxxxx & Rypins, LLP, 000 Xxxxxx Xxxx Xxxxxx, Xxxxx 000, Xxx
Xxx, Xxxxxxxxxx 00000.
d. Any notice given in accordance with this Section 3 shall be
deemed to have been given when delivered personally or by telex or telecopier
or on the fifth business day next following the date upon which it shall have
been deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested or sent by courier mail.
4. Effectiveness of Agreement. This Agreement shall become effective
when executed and delivered by Purchaser and the Stockholders and shall be
binding in all respects upon the respective heirs, administrators, executors,
successors and permitted assigns of each of the parties hereto; provided,
however, that no party may assign this Agreement in whole or in part to any
Person other than a wholly-owned subsidiary of such party without first
obtaining the written consent of all of the other parties, which consent
shall not be unreasonably withheld.
5. Applicable Law. This Agreement shall be construed in accordance
with the laws of the State of New York. Any action, suit or other proceeding
initiated by the Purchaser or the Stockholders against the other under or in
connection with this Agreement shall be brought in any Federal or state court
in the State of New York, as the party bringing such action, suit or
proceeding shall elect, having jurisdiction over the subject matter thereof.
6. Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be considered an original but all of which
shall constitute the Agreement by and among the parties.
7. Severability. Should any term, provision or clause hereof, or of any
other agreement or document which is required by this Agreement, be held to
be invalid, such invalidity shall not affect any other provisions or clauses
hereof or thereof which can be given effect without such invalid provision,
all of which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
CANTEL INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, Vice President
/s/ Xxxxxxxxxxx Xxxx
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Xxxxxxxxxxx X. Xxxx
/s/ Xxxxxxxxxxx Xxxx for Bonolyn X. Xxxx
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Bonolyn X. Xxxx