Exhibit 10.4 Annex F
NONCOMPETITION, NONDISCLOSURE, NONSOLICITATION AND
INTELLECTUAL PROPERTY AGREEMENT
THIS NONCOMPETITION, NONDISCLOSURE, NONSOLICITATION AND INTELLECTUAL
PROPERTY AGREEMENT (this "Agreement") is made and entered into as of this ____
day of July, 1998, by and between WINDSOR ART, INC., a Missouri corporation with
an address at c/o Interiors, Inc., 000 Xxxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxx Xxxx
10553- 1017 ("Windsor") and XXXXX X. XXXXXX, residing at 0000 Xxxxxx Xxxx, Xx.
Xxxxx, Xxxxxxxx 00000, a shareholder ("Shareholder") of Bentley International,
Inc., a Missouri corporation ("Bentley").
RECITALS
WHEREAS, Interiors, Inc., a Delaware corporation ("Interiors"), and Bentley
have entered into a Stock Purchase Agreement dated June ____, 1998 (the "Stock
Purchase Agreement"), pursuant to which Interiors has purchased all of the
issued and outstanding capital stock of Windsor from Bentley.
WHEREAS, pursuant to the terms of the Stock Purchase Agreement, Bentley
agreed to cause Shareholder, and Shareholder agreed, to execute a noncompetition
agreement; and
WHEREAS, Shareholder desires to enter into this Agreement with Windsor;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Stock Purchase Agreement are used herein as therein defined.
2. Books and Records. Shareholder shall immediately surrender to Windsor
all lists, books, records, materials and documents, together with all copies
thereof, and all other property in his possession or under his control, relating
to or used in connection with the past or present business of Windsor or any of
Windsor's affiliates (other than the business of Bentley which does not relate
to the Business (as defined herein)) or subsidiaries, except for copies of any
such documents Shareholder deems reasonably necessary to perform his services
pursuant to that certain Consulting Agreement of even date herewith between
Interiors, Windsor and Shareholder. Shareholder acknowledges and agrees that all
such lists, books and records, including compilations or collections of
customers' names and addresses are the sole and exclusive property of Windsor.
3. Noncompetition. Shareholder will not at any time for a period of five
(5) years from the effective date of this Agreement be or become (a) interested
or engaged in any manner, except in connection with Shareholder's services
pursuant to said Consulting Agreement, directly or indirectly, in any county
and/or city in the United States of America or any county or political
subdivision in any state or country in the world, either alone or with any
person, firm or corporation now existing or hereafter created, in any business,
trade or other enterprise
substantially similar to or which is or may be competitive with the past,
present or future business of Windsor or any of Windsor's affiliates or
subsidiaries (as such business relates to the manufacture and sale of decorative
accessories) (collectively, the "Business"), or (b) directly or indirectly, a
stockholder, bondholder or officer, director or employee of, or in any manner
associated with, or aid or abet or give information or financial assistance to
any business which is or may be competitive with the Business; provided that the
provisions of this Section 3 shall not be deemed to prohibit a purchase or
ownership by Shareholder, as a passive investment, of not more than five percent
(5%) of the outstanding capital shares of any publicly held corporation.
Shareholder represents and warrants that as of the date hereof, Shareholder does
not own more than five percent (5%) of the outstanding capital shares of any
publicly held corporation engaged in a business which is or may be competitive
with the Business (other than Bentley International, Inc., which upon the sale
of Windsor to Interiors on the date hereof shall cease to be engaged in a
business which is or may be competitive with the Business).
4. Nondisclosure. Other than as required in connection with the fulfillment
of Shareholder's duties under that certain Consulting Agreement between
Interiors, Windsor and Shareholder dated of even date herewith, Shareholder
shall not at any time, either directly or indirectly, disclose or divulge to any
other person, firm or corporation the requirements or prices being charged or
any other confidential information concerning or relating to any of the former
or existing customers of Windsor, any affiliate (other than customers of Bentley
which do not relate to the Business) or subsidiary of Windsor (collectively, the
"Customers") with respect to the Business or any secret, proprietary or
confidential information concerning or relating to the Business (collectively,
"Confidential Information"), and Shareholder will not divert or attempt to
divert any of the Customers or do any act to impair, prejudice or destroy the
goodwill of Windsor with the Customers.
5. Nonsolicitation. Because Shareholder's solicitation of the Customers or
employees of Windsor under certain circumstances would necessarily involve the
use or disclosure of Confidential Information, Shareholder shall not, either
directly or indirectly, at any time for a period of five (5) years from the
effective date of this Agreement (a) call on, solicit or take away, or attempt
to call on, solicit or take away any of the Customers, (b) employ, hire or
solicit employment of any person employed by or providing services to Windsor,
(c) do any act to impair, prejudice or destroy the goodwill of Windsor or to
prejudice or impair the relationship or dealing between Windsor and the
Customers or between Windsor and any of its employees, or (d) assist any other
person, firm or corporation in any such acts; provided, however, that Xxxxxxxx
Xxxxxxx (i) shall be permitted to serve as a director of Bentley, (ii) may be
solicited by Bentley to become a full-time employee of Bentley after January 1,
1999 and (iii) may be hired as a full-time employee of Bentley only upon ninety
(90) days' written notice to Windsor.
6. Relief. Shareholder acknowledges that (a) the restrictions contained in
Sections 3, 4 and 5 shall apply in all areas where such application is permitted
by law, (b) the provisions of Sections 3, 4 and 5 are reasonable and necessary
to protect the legitimate interests of Interiors under the Stock Purchase
Agreement, (c) the restrictions contained in Sections 3, 4, and 5 will not
prevent Shareholder from earning or seeking a livelihood, and (d) any violation
of this Agreement by Shareholder would result in irreparable harm to Windsor.
Accordingly, Shareholder consents and agrees that, if he violates any of the
provisions of this Agreement, Windsor shall be entitled to, in addition to other
remedies available to it, an injunction to be issued by any court of competent
jurisdiction restraining him from committing or continuing any violation of this
Agreement, without the need for posting a bond or for any other undertaking,
including without limitation the need to prove the inadequacy of money damages.
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7. Knowledge; Advice of Counsel. Shareholder represents and warrants that
he has read and understands each of the provisions of this Agreement and that he
has sought and obtained the advice of legal counsel before agreeing to be bound
by the terms hereof. Shareholder represents and warrants to Windsor that this
Agreement, subject to any applicable law, is a valid and binding obligation of
Shareholder, enforceable against him in accordance with its terms. Shareholder
acknowledges and agrees that Interiors would not have agreed to enter into the
Stock Purchase Agreement but for the execution, delivery and performance by the
Shareholder of this Agreement.
8. Miscellaneous.
8.1 Notices. All notices and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to be sufficiently given (a) if delivered personally, upon delivery and
(b) if delivered by registered or certified mail (return receipt requested),
upon the earlier of actual delivery or upon three (3) days after being mailed,
postage prepaid, in each case to Shareholder or Windsor at the address set forth
at the beginning of this Agreement. Either party may, by notice given hereunder,
designate any further or different address to which subsequent notices or other
communications shall be sent.
8.2 Successors; Assigns. Windsor may assign its rights and obligations
hereunder to any affiliate of Windsor, or to any person acquiring, by merger,
stock purchase, asset acquisition or otherwise, all or substantially all of the
outstanding capital stock or assets of Windsor or any affiliate of Windsor.
Shareholder shall not assign any rights or obligations under this Agreement
without the prior written consent of the Board of Directors of Windsor. Subject
to the foregoing, the provisions of this Agreement shall be binding upon and
inure to the benefit of the successors and assigns of Windsor and the heirs,
legal representatives, executors, successors and assigns of Shareholder.
8.3 Severability. If any term or provision of this Agreement is held to be
void or unenforceable by any court of competent jurisdiction, only that
objectionable term or provision shall be deleted herefrom while the remainder of
the term, provision and agreement shall be enforceable. In the event that the
whole or any part of the provisions of Sections 3, 4 or 5 hereof shall be
determined to be invalid by reason of the extent, duration, scope or other
provision set forth therein, the extent, duration, scope or other provision,
those sections shall be reduced so as to cure such invalidity and in its reduced
form the provisions of Sections 3, 4 and 5 shall be enforceable in the manner
contemplated hereby.
8.4 Controversy; Venue. In the event of any controversy, claim or dispute
between the parties arising out of or relating to this Agreement, such
controversy, claim or dispute may be tried solely in the courts of the State of
Missouri or in the United States Federal District Court for the Eastern District
of Missouri, as either party may elect, and both parties hereto irrevocably
consent to the exclusive jurisdiction and venue of such courts. Both parties
irrevocably waive any objection to such jurisdiction and irrevocably waive the
right to seek dismissal or transfer on the grounds lack of in personam
jurisdiction, improper venue, forum non conveniens or similar grounds and agree
that, in addition to any other manner permitted by law, service of process of
any such court may be made upon Windsor and Shareholder by personal delivery, or
by mailing certified or registered mail, return receipt requested, to the
addresses designated in Section 8.1 hereof. The prevailing party shall be
entitled to recover from the
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nonprevailing party reasonable costs and expenses, including without limitation
reasonable attorneys' fees.
8.5 Waiver of Breach. The waiver by Windsor of a breach of any provision of
this Agreement by Shareholder shall not operate or be construed as a waiver of
any subsequent breach by Shareholder.
8.6 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument. Furthermore,
facsimiles of signatures may be taken as the actual signatures, and each party
agrees to furnish the others with documents bearing the original signatures
within ten (10) days of the facsimile transmission.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal, substantive laws of the State of Delaware.
8.8 Complete Agreement; Amendments. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes any prior agreements and understandings relating thereto.
This Agreement may not be waived, changed, modified, extended or discharged
orally, but only by a written instrument signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
"Shareholder"
________________________________________
Xxxxx X. Xxxxxx
WINDSOR ART, INC.
By:_____________________________________
An authorized officer
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