EXHIBIT 10.80
NON-COMPETITION AGREEMENT
This Non-Competition Agreement (the "Agreement) is entered into by and
between Xxxxxx X. Xxx Xxxxxx (the "Executive") and IMC Global Inc., a
Delaware corporation, as of this 1st day of August 1998.
WHEREAS, IMC Global Inc. has announced its intention and desire to sell
all of its ownership interest in IMC Agribusiness Inc., Xxxxxx'x Xx
Services, Inc. and IMC Nitrogen, Inc. (collectively, "AgriBusiness");
WHEREAS, the Executive signed a Non-Competition Agreement with The
Vigoro Corporation, a wholly owned subsidiary of IMC Global Inc., on or
about March 1, 1996 which the parties would like to terminate and
replace with this Agreement;
WHEREAS, IMC Global Inc. and the Executive have entered into a
Severance Agreement (the "Severance Agreement") contemporaneously with
this Agreement under which IMC Global Inc. agrees to pay Severance
Benefits (as defined in the Severance Agreement) to the Executive upon
his termination of employment under certain circumstances as defined
therein;
NOW, THEREFORE, in consideration of the substantial benefits available
to the executive under the Severance Agreement and the agreements and
covenants contained herein, the sufficiency of which is acknowledged,
the Executive and IMC Global Inc. hereby agree as follows:
1. Definitions. Each term defined herein shall be given its defined
meaning wherever used in this Agreement unless the context requires
otherwise.
(a) "Affiliate" means any corporation which is a member of the
same controlled group of corporations (within the meaning of
Section 414(b) of the Internal Revenue Code) as IMC Global
Inc. or any unincorporated trade or business which is under
common control with IMC Global Inc. (as determined under
Section 414(c) of the Internal Revenue Code).
(b) "Company" means IMC Global Inc. and its subsidiaries, as they
may exist from time to time.
(c) "Successor Company" means an entity to which the Company
transfers its ownership interest in and operation of
AgriBusiness.
2. Confidential Information/ Proprietary Rights. Except as required by
law, for the longest period of time permitted by applicable law, the
Executive shall preserve the confidentiality of and shall not use or
divulge or take action reasonably likely to result in the use or
disclosure of any trade secret, proprietary or confidential information
of the Company or an Affiliate; provided, however, that the Executive
may use or disclose such information if it is or becomes public or
available to the general public otherwise than through any act or
default of a party that has an obligation of confidentiality or non-use
with respect to such information. Such information includes but is not
limited to (i) the identity, purchase and payment patterns of, and
special relations with, customers; (ii) the identity, net prices and
credit terms of, and special relations with, suppliers; (iii) inventory
selection and management techniques; (iv) product development and
marketing plans; and (v) finances.
3. Non-Competition. The Executive agrees to the following obligations
that he acknowledges to be reasonably designed to protect the Company's
legitimate business interests without unnecessarily or unreasonably
restricting his post-employment opportunities.
(a) The following restrictions apply during the period the
Executive is employed by the Company and for a period of three
years following the termination of his employment with the
Company. These restrictions apply regardless of the reason
for the Executive's termination or by whom initiated. The
parties expressly agree and intend that, for purposes of this
Agreement only, the Company's transfer of its ownership
interest in and operation of AgriBusiness to a Successor
Company, whether through a stock transaction or otherwise,
shall constitute a termination of the Executive's employment
with the Company.
(i) The Executive will not engage or assist others in
engaging in competition with the Company, directly or
indirectly, whether as an employer, proprietor, partner,
stockholder (other than the holder of less than 5% of the
stock of a corporation the securities of which are traded
on a national securities exchange or in the over-the-
counter market), director, officer, employee, consultant,
contractor, agent, or otherwise, in the business of
producing, brokering and/or distributing in a wholesale
capacity crop nutrients, animal feed ingredients, salt,
soda ash, sodium bicarbonate, sodium sulfate or boron
chemicals.
(ii) The Executive will not solicit, in competition with the
Company, directly or indirectly, any person who is a
client, customer or prospect (as such terms are defined
below) for the purpose of performing services and/or
providing goods and services of the kind performed and/or
provided by the Company in the business of producing,
brokering and/or distributing in a wholesale capacity
crop nutrients, animal feed ingredients, salt, soda ash,
sodium bicarbonate, sodium sulfate or boron chemicals.
(iii) The Executive will not induce or persuade or attempt to
induce or persuade any employee, contractor or agent of
the Company to terminate his or her employment, agency,
or other relationship with the Company in order to enter
into any employment agency or other relationship in
competition with the Company.
Notwithstanding anything in the foregoing to the contrary, it shall not
be a violation of this Section 3(a) for the Executive to: (i) be
employed by the Successor Company; (ii) perform services covered by
this Section 3(a) on behalf of and as an employee of the Successor
Company; or (iii) solicit the Company's clients, customers or prospects
(as defined below) on behalf of and as an employee of the Successor
Company.
The covenants contained in this Section 3(a) shall apply within any
jurisdiction of North America, it being understood that the geographic
scope of the business and strategic plans of the Company extend
throughout North America and are not limited to any particular region
thereof and that such business may be engaged in effectively from any
location in such area.
As used herein, the terms "client," "customer" and "prospect" shall be
defined as any client, customer or prospect of any business in which
the Company is or has been substantially engaged within the one year
period prior to the Executive's termination of employment with the
Company (a) to which or to whom the Executive submitted or assisted in
the submission of a presentation or proposal of any kind on behalf of
the Company; (b) with which or with whom the Executive had substantial
contact relating to the business of the Company; or (c) about which or
about whom the Executive acquired substantial confidential or other
information as a result of or in connection with the Executive's
employment.
(b) The Executive agrees that upon termination of his employment
he will immediately surrender and return to the Company all
Company records and other documents obtained by him,
entrusted to him, or otherwise in his possession or control
during the course of his employment by the Company, together
with all copies thereof.
(c) The Executive acknowledges that the provisions contained in
this Section 3 are reasonable and necessary because of the
substantial harm that would be caused to the Company by the
Executive engaging in any of the activities prohibited or
restricted herein. Nevertheless, it is the intent and
understanding of each party hereto that if, in any action
before any court, agency or other tribunal legally empowered
to enforce the covenants contained in this Section 3, any
term, restriction, covenant or promise contained therein is
found to be unenforceable due to unreasonableness or due to
any other reason, then such term, restriction, covenant or
promise shall be deemed modified to the extent necessary to
make it enforceable by such court or agency.
(d) The Executive acknowledges that his breach of this Section 3
will result in immediate and irreparable harm to the
Company's business interests, for which damages cannot be
calculated easily and for which damages are an inadequate
full remedy. Accordingly, and without limiting the right of
the Company to pursue all other legal or equitable remedies
available for the violation by the Executive of the covenants
contained in this Section 3, it is expressly agreed that
remedies other than injunctive relief cannot fully compensate
the Company for the irreparable injury that the Company could
suffer due to any such violation, threatened violation or
continuing violation and that the Company shall be entitled
to injunctive relief, without the necessity of proving actual
monetary loss, to prevent any such violation, threatened
violation or continuing violation thereof.
4. Entire Agreement, Amendment, Waiver. This Agreement constitutes
the entire agreement between the Company and the Executive with respect
to the subject matter hereof. This Agreement terminates and supersedes
any prior agreements made between the parties with respect to the
subject matter hereof, including but not limited to the Executive's
Non-Competition Agreement entered into by the parties on or about March
1, 1996. The parties may not amend this Agreement except by written
instrument signed by both parties. No waiver by either party at any
time of any breach by the other of any provision of this Agreement
shall be deemed a waiver of similar or dissimilar provision at the same
time or any prior or subsequent time.
5. Severability. The provisions of this Agreement shall be regarded
as durable, and if any provision or portion thereof is declared invalid
or unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder and applicability thereof shall not be
affected.
6. Assumption. This Agreement shall inure to the benefit of the
Company and to the successors and assigns of the Company; provided,
however, that it is understood that this Agreement shall not inure to
the benefit of or be assumed by a Successor Company.
7. Applicable Law. This Agreement shall at all times be governed by
and construed, interpreted and enforced in accordance with the internal
laws ( as opposed to the conflict of laws provisions) of the State of
Illinois.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its duly authorized officer and the Executive has signed this
Agreement as of the day and year first above written.
IMC GLOBAL INC. Xxxxxx X. Xxx Xxxxxx
By: /s/ B.R. Xxxxxxxxx /s/ Xxxxxx X. Xxx Xxxxxx
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Title: Senior Vice President
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